Prayers

The House met in a hybrid proceeding.

Arrangement of Business
 - Announcement

Lord McFall of Alcluith: My Lords, the Hybrid Sitting of the House will now begin. Some Members are here in the Chamber, while others are participating remotely, but all Members will be treated equally. I ask all Members to respect social distancing. If the capacity of the Chamber is exceeded, I will immediately adjourn the House. Oral Questions will now commence. Please can those asking supplementary questions keep them no longer than 30 seconds and confined to two points. I ask that Ministers’ answers are also brief.

Unemployment: Over-50s
 - Question

Lord Haskel: To ask Her Majesty’s Government what steps they are taking to address the number of unemployed people over the age of 50.

Baroness Stedman-Scott: Our Plan for Jobs package provides funding to ensure that more people, including those aged 50 and over, get tailored Jobcentre Plus support to help them find work and build the skills that they need to get into work. As part of the Jobcentre Plus offer for over-50s, we are also providing dedicated support through 50-plus champions and mentoring circles to ensure that they fully benefit from the Plan for Jobs package and existing Jobcentre Plus support.

Lord Haskel: My Lords, the Government’s schemes, though, just do not seem to work. One scheme had the worst outturn, with just one in five being successful. In the past 12 months, the number of unemployed over-50s has gone up by a third, which is significantly more than any other group. This is partly because many employers prefer more technologically skilled younger people, who may come cheaper, perhaps with government money. This over-50s group requires specific, updated back-to-work support using their knowledge and experience. Will the Government be much more specific and give them that support?

Baroness Stedman-Scott: I would like to speak to the noble Lord outside the Chamber about the statistics that he raises because they do not resonate with those that I have. I can only say to him that the support that over-50s are getting through the Jobcentre  Plus network builds on their existing skills base and is doing everything possible to get them back into the labour market.

Baroness Pitkeathley: I am sure that the Minister will know that one in five people over 50 provide unpaid care to a family member or friend. These caring responsibilities have a significant impact on their ability to work, leaving many outside the labour market. Of course, the pandemic has exacerbated this situation. What support can the Government provide to help older carers return to work and juggle work with their caring responsibilities, on which social care so much depends?

Baroness Stedman-Scott: To help and support carers to remain in work or return to work, we have been working with employer organisations, the CIPD, the British Chambers of Commerce and LEPs to host a series of webinars, with content delivered by the business champion for older workers. We absolutely agree with the noble Baroness about the role that carers play. We want flexibility from employers, flexibility in hours and flexibility in the roles that those people can provide.

Baroness Janke: My Lords, older workers have valuable experience and life skills but are twice as likely as younger workers to be out of work for 12 months or more. What opportunities for financially supported training and education will the Government make available to this age group to enable them to develop their skills and, if necessary, change their career paths?

Baroness Stedman-Scott: Again, the noble Baroness makes an important point about the value that older workers can add to the workforce. The UK Government are investing £2.5 billion in the national skills fund to aid the lifetime skills guarantee. This is a great opportunity for older workers.

Baroness Redfern: My Lords, the fact is that many people need to work for longer, but workers aged 50-plus still face barriers to accessing work and training. What extra government support is there particularly for smaller and medium-sized businesses to help them to offer employment to older people who are disabled?

Baroness Stedman-Scott: I am pleased to report that the Government have appointed Andy Briggs as business champion for older workers to spearhead the Government’s work to support employers to retain, retrain and recruit older workers, including the disabled.

Baroness Meacher: My Lords, as the Minister well knows, the over-50s who have lost their jobs during the pandemic are at a serious risk of long-term unemployment, at huge cost to themselves but also to the taxpayer. Have the Government considered creating an over-50s Kickstart scheme—it is an excellent scheme for young people—encouraging employers to create jobs but also providing retraining for older workers who might well benefit from it?

Baroness Stedman-Scott: That is a great idea. I will take it back to the department because I can promise the whole House that our Secretary of State and our team are looking at innovative ways to get people back into work.

Baroness Sherlock: My Lords, to build on that, the pandemic has certainly caused job losses for older people and led to people retiring early, or indeed delaying retirement. That hurts those individuals and their families, but it also affects the labour supply and the pensions landscape. It is a big public policy issue. Have Ministers considered developing a focused strategy, with ring-fenced funding and targeted interventions, and perhaps adapted conditionality for older workers?

Baroness Stedman-Scott: In respect of conditionality and targeted support, the work that we are doing through the work coaches is tailored and individual. We are using the conditionality rules as compassionately and sensibly as we can.

Lord Taylor of Goss Moor: My Lords, as has been indicated, over-50s are twice as likely as the rest of the population to stay unemployed, once unemployed, for more than two years. The truth is, of course, that many never get back into work, partly because there is a sense that taking on an older employee is less valuable, despite their skills and experience. Given that during the pandemic we have seen a much greater increase proportionately in unemployment among the over-50s, there is clearly a risk that many of these people will never return to work. I support the suggestion of the equivalent to the Kickstart programme for over-50s, because we know that the longer you are unemployed at over 50, the more likely it is that you will never return to work.

Baroness Stedman-Scott: As I said, I thought that the idea of the noble Baroness, Lady Meacher, was excellent. I can only concur with the noble Lord that we should explore that.

Lord Dodds of Duncairn: My Lords, the pandemic has been particularly difficult for older people in terms of job losses. Even in normal times, far too many are out of work well before retirement age. We must do more to acknowledge the contribution to society and the economy of people of all ages, so what more can the Government do to cut out age bias in recruitment and training and to get companies to recognise the importance of age inclusivity?

Baroness Stedman-Scott: This will be part of the important work of the over-50s champion appointed by the Government, Andy Briggs. I reiterate that older workers have skills and experience that employers are looking for. It is up to us to work with employers to encourage and influence them to secure vacancies for older workers.

Baroness Fookes: My Lords, I spoke only this morning to four distinguished horticulturalists who said that they would warmly welcome people aged over 50 coming into that sector. They, too, mentioned a modified Kickstart scheme, so may I add to the pleas already made?

Baroness Stedman-Scott: Kickstart for older workers: message received and understood. The UK Government are investing £2.5 billion in the national skills fund to aid the lifetime guarantee, we have a free online skills toolkit and the Chancellor’s announcement in July of his Plan for Jobs included an extra £17 million to support 32,000 more vocational training places.

Baroness Wheatcroft: My Lords, a snapshot by the Institute for Fiscal Studies last year showed that one in four people on furlough were over 50. My concern is that many of those people will not go back into employment again—as we have heard, over-50s are harder to employ. Could we not profitably use the time when people are on furlough to retrain them for the jobs that will be available when we come out of the pandemic properly?

Baroness Stedman-Scott: I am pleased to be able to confirm to the House that, where an employee is on furlough, they can take part in training, volunteer for another employer or organisation or work for another employer if contractually allowed.

Lord Young of Norwood Green: My Lords, what efforts are the job coaches and service centres making to assess the current skills of over-50s and to ensure the necessary retraining to enable re-employment? I hope that the House will recognise the enormous efforts being made by job coaches and service centre staff. The system might need some improvement, so the Kickstart idea is a good example.

Baroness Stedman-Scott: I think that I have already covered the issue of reskilling and training. The key to getting people back to work is to have the work coach make an assessment and build an action plan that gets people back to work, along with the efforts that we are making to influence employers. I am grateful to the noble Lord, as will be the whole DWP staff, for his endorsement of their excellent and committed work.

Lord McFall of Alcluith: My Lords, all supplementary questions have been asked and we now move to the next Question.

World Health Organization: Pandemics
 - Question

Lord Crisp: To ask Her Majesty’s Government what plans they have to strengthen the role of the World Health Organization to support the management of future pandemics.

Lord Bethell: My Lords, the UK is a strong supporter of the WHO and an advocate of reform to ensure that it further strengthens its ability to respond effectively to health emergencies. The UK is taking a leading role on reform through our seat at the WHO Executive Board and our G7 presidency. We are working with international partners to push for  a stronger early warning system, reduced risk of zoonotic diseases through better surveillance and improved compliance with international health regulations.

Lord Crisp: My Lords, I am delighted that the UK Government are providing support to the World Health Organization, contributing to COVAX and taking this very important role of reform. Further to the Independent Panel for Pandemic Preparedness and Response report, which talked about the World Health Organization being
“underpowered to do the job expected of it”,
will the Government ensure that this is discussed at G7 and that the world will commit to doing whatever it takes to ensure that the WHO is able to respond even more effectively to pandemics in the future?

Lord Bethell: My Lords, the Government are extremely committed to pandemic preparedness. We support the principle of a pandemic preparedness treaty, and we have laid out at UNGA a very clear programme for enhancing global pandemic preparedness. We look forward to the publication of the Independent Panel for Pandemic Preparedness and Response report shortly, and I reassure the noble Lord that this is top of the agenda at our G7.

Lord McColl of Dulwich: Does the Minister agree that the WHO could support the management of future pandemics now by organising a worldwide vaccine passport? People are very keen to travel, and this would help the travel industry and could act as an incentive to those who are reluctant to take the vaccine.

Lord Bethell: My Lords, I share the noble Lord’s passion for international travel. Like him, I cannot wait for global travel to restart. I also see the connection between the promise of a vaccine certificate of some kind and taking up the vaccine itself. Plans for vaccine certificates for global travel are emerging as we speak. We have a Cabinet Office programme which is co-ordinating across government initiatives on vaccine certification, and a review is in progress which will pronounce shortly.

Baroness Finlay of Llandaff: [Inaudible]—excellent record in research, are the Government able to work through the WHO to promote research into recyclable PPE to avoid the environmental hazard of an enormous pile-up of plastics and discarded PPE? Can the Government work on a public education programme of basic hygiene, with clean water and soap available across the world, so that the very basic principles of hygiene can be maintained?

Lord Bethell: My Lords, the environmental consequences of the pandemic are indeed severe, as the noble Baroness rightly points out. We are working with colleagues in Defra to try to figure out answers to this tricky problem of the legacy of all this PPE. With regards to hygiene education around the world, we have a number of programmes in place, through ODA and our various international development plans, and hygiene is very much at the centre of those.

Lord Judd: My Lords, has the pandemic not brought home almost more powerfully than ever before the total interdependence of the global community? Therefore, are the international institutions such as the WHO and other specialised UN agencies the only way that we can have a sane future for society as a whole? We cannot forge that on our own as an island. We played a distinguished part in the role of developing organisations such as the WHO in the past. Can the noble Lord reassure us that it is not just a matter of saying that we have priorities and commitments but of ensuring that the whole culture of government looks towards strengthening international institutions such as the WHO?

Lord Bethell: I completely agree with the noble Lord. A multilateral approach is at the heart of our response to the pandemic, and I agree that we are not safe here in the UK until the whole world has addressed the question of the pandemic.

Baroness Brinton: My Lords, the World Health Organization recommends regular handwashing as a critical preventive measure against Covid-19, but 3 billion people worldwide lack access to soap and water at home. The UK’s Hygiene and Behaviour Change Coalition responded to the onset of the pandemic with a £100 million commitment to reach a billion people, but this project is now ending. It is wonderful to have the Government’s support for this project, but will they put their money where their mouth is and continue to fund this vital project?

Lord Bethell: My Lords, I am grateful to the noble Baroness for her tribute to the Hygiene and Behaviour Change Coalition. I cannot offer guarantees from the Dispatch Box on its future funding, but I will inquire about the matter. As the noble Baroness suggests, it sounds like a fascinating and important project.

Viscount Ridley: My Lords, after last month’s embarrassing Potemkin investigation of Wuhan, will my noble friend the Minister ask the WHO to insist that the Chinese Government release the genome sequences of eight bat viruses of the so-called 7896 clade held in the Wuhan Institute of Virology database that are known to be very closely related to SARS-CoV-2 and may hold critical clues, but which they refuse to release?

Lord Bethell: My Lords, we are extremely hopeful for the IPPPR process, and we have supported the team in its desire to get to the bottom of its investigations. I do not know the specifics of the bat viruses to which my noble friend refers, but I reassure him that the British Government are leaning on the WHO as hard as we possibly can to make the most of this important investigation.

Baroness Thornton: Given the cuts to the aid budget which have been announced, and given that experience shows that the world’s reaction to pandemics is to panic and then forget—which Covid-19 has cruelly exposed—can the Minister expand on how HMG are going to support the World Health Organization to address the immediate urgent work to fight the pandemic  and to build for the future the firepower and structure to better handle an issue of global magnitude under the Government’s current budget constraints?

Lord Bethell: My Lords, the financial support of the WHO from the Government is generous, and so is our support of COVAX. When it comes to the WHO, we are looking for stronger horizon scanning and early warning, higher-quality technical guidance that is tailored to different countries and resource settings, and greater co-ordination of governance and activity across the animal, human and environmental interface. This is a really clear manifesto. The Prime Minister has laid it out clearly, and we are using the G7 process to ensure that there is support for it across the G7 countries.

Earl of Sandwich: My Lords, do the Government fully recognise that most of the poorest countries, even states such as Vietnam, are still coping without any vaccinations? Does the Minister agree that much more attention must be paid to the support of local health services in the least developed countries? They are easily bypassed when there are major international health campaigns.

Lord Bethell: The noble Earl refers to the important role that the WHO plays. Of course, we are all frustrated sometimes with our multilateral organisations, but the noble Earl quite rightly alludes to the dependence that many countries have on the advice, counsel and practical support that organisations such as the WHO provide. That is why we want the WHO to step up to its responsibilities, why we have instituted a major reform programme recommendation, and why we are extremely hopeful that the WHO steps up.

Lord Mann: Will the WHO have a specific input and a direct voice in the G7 deliberations?

Lord Bethell: My Lords, the WHO is not a sitting member of the G7, but we have a representative attending our health track in Oxford, and we have been in dialogue with them directly with our agenda on the G7.

Baroness Browning: The WHO website officially states that, on 30 January, it declared a public health emergency of international concern. It claims that not many countries took much notice and that it was not until it used the word “pandemic”, on 11 March, five weeks later, that people sat up and took notice. This is clearly unsatisfactory. Will my noble friend do all that he can, as I hope he will, to ensure that the system of notification is improved at the earliest opportunity?

Lord Bethell: My Lords, my noble friend is right in her chronology, but we want the WHO to continue to learn lessons on how to improve its response to global health emergencies in the early stage. The delay in that global response is something that the WHO needs to learn from.

Lord McFall of Alcluith: My Lords, the time allowed for this Question has elapsed. We now come to the third Oral Question. I understand that the noble Baroness, Lady Crawley, intends to ask this Question on behalf of the noble Baroness, Lady Nye.

Women’s Equality
 - Question

Baroness Nye: To ask Her Majesty’s Government what steps they are taking to increase women’s equality globally.

Baroness Crawley: My Lords, on behalf of my noble friend Lady Nye, I beg leave to ask the Question standing in her name on the Order Paper.

Lord Ahmad of Wimbledon: My Lords, promoting gender equality remains a priority for the Government, including breaking down barriers to girls fulfilling their right to 12 years of quality education. Our leadership on gender equality is even more vital as we work globally to build back better and more inclusively after Covid-19. This year, we are putting gender equality at the heart of our G7 presidency, co-leading the Generation Equality Action Coalition on Gender-Based Violence, hosting the Global Partnership for Education and recognising the importance of gender to be effective in the fight against climate change.

Baroness Crawley: I thank the Minister for his Answer. However, following the merger of DfID with the FCO, what responsibilities has the FCDO taken forward in standing up for women’s sexual and reproductive rights globally? He will know that in countries such as Nigeria and Brazil having an abortion can carry a heavy jail sentence. Closer to home, in Poland, recent rulings mean much suffering for thousands of women. How is the FCDO challenging such countries through diplomatic, economic and aid channels?

Lord Ahmad of Wimbledon: My Lords, when others on the world stage challenged the need for action on women’s sexual and reproductive health, the United Kingdom has been proud to defend comprehensive sexual and reproductive health rights, including at the UN Security Council, covering issues such as family planning. These are fundamental to empowerment and the health of girls and women. For example, between 2019 and 2020 alone, UK aid helped over 25 million women and girls access and use modern methods of contraception.

Baroness Sugg: My Lords, the Department for International Development had an impressive track record in promoting gender equality globally, thanks in part to its ground-breaking strategic vision for gender equality. Can my noble friend the Minister tell me if the Foreign, Commonwealth and Development Office is committed to that strategic vision and, if not, how will it ensure that supporting women and girls is at the heart of what it does?

Lord Ahmad of Wimbledon: My Lords, I can assure my noble friend that the FCDO has fully committed to retain and build on the strategic vision, using all our diplomatic and development levers. The strategic vision continues to reflect and respond to the UK Government’s ambitions on issues of gender equality, and this will not change. The challenges of advancing girls’ education, sexual reproductive health and women’s political empowerment remain central to our planning.

Lord Singh of Wimbledon: My Lords, a TUC report on the disproportionate hardship of childcare, home-schooling and often unsociable working hours endured by women in this country during lockdown shows that we have far to go in ensuring fairness to women here. Looking further afield, does the Minister agree that for real progress on equality to be made there is now an urgent need to place negative attitudes to women embedded in religious texts into the very different context of today’s times?

Lord Ahmad of Wimbledon: My Lords, I totally agree with the noble Lord. Those who seek to marginalise women using erroneous interpretations of religious texts or, indeed, other reasons are totally and utterly wrong. We should stand up against the exclusion of women anytime, anywhere.

Baroness Gale: Is the Minister aware that the Commission on the Status of Women’s conference will commence on 15 March with the themes of women’s full participation in decision-making in public life, the elimination of violence, achieving gender equality and empowering women and girls? What role are the Government playing in this important global conference and how are they working with the global community to achieve gender equality—goal 5 of the sustainable development goals?

Lord Ahmad of Wimbledon: My Lords, we are fully engaged in the multilateral sphere, including with the conference that the noble Baroness mentioned. Specifically through our G7 presidency, we have the three pillars of educating girls, empowering women and ending violence against women and girls, which will also ensure the focus of the G7 countries on this important agenda.

Baroness Northover: My Lords, there can scarcely be anything more important than ensuring that women and girls globally have access to family planning. The noble Lord has said that the UK is a “proud” champion of this. Does he recognise that this will ring hollow if later he has to go beyond saying that no decisions have been made on the budget and then implement swingeing cuts, as in aid to Yemen, as the Government balance the books on the backs of the poor, as Mark Lowcock put it?

Lord Ahmad of Wimbledon: My Lords, on the issue of the budget, we are genuinely at the moment going through a review, so I cannot make any commitment and it would not be appropriate to do so. However, as I have said, this issue remains an important priority and the legacy of our work in this area is clear.

Lord Collins of Highbury: My Lords, malnutrition disproportionately affects girls and, as a result of Covid-19, rates of malnutrition around the world are soaring. Not only does that prevent girls reaching their full potential in school and as adults but it can be fatal, and can often lead to childbirth complications. Can the Minister assure us that, despite the aid cuts, he will continue to prioritise nutrition and take urgent steps to address the global rise in malnutrition among women and girls?

Lord Ahmad of Wimbledon: My Lords, I can assure the noble Lord that I very much share his view on the issue of nutrition, which he rightly articulated. While we invest in empowerment and education, it is important that all girls everywhere receive the care they need, as well as the food they need, to ensure that they can lead productive lives for themselves and their countries.

Baroness Hodgson of Abinger: My Lords, the Covid-19 pandemic is threatening to turn back the clock on gender equality globally. Nowhere is this worse than in conflict countries. How can we ensure that more funds reach women at the grass roots who are trying to survive and raise their children in those shocking and dangerous situations?

Lord Ahmad of Wimbledon: My Lords, again, I agree with my noble friend. The Covid-19 pandemic has provided an opportunity to those who wish to suppress girls’ and women’s rights as a means to justify what they are doing. This is totally and utterly wrong, and UK development programming will continue to focus on important priorities such as supporting women’s meaningful participation, girls’ education and—as I said earlier, and as I am sure my noble friend will acknowledge and welcome—protecting girls and women from widespread gender-based violence.

Lord Loomba: The empowerment of women and gender equality requires strategic interventions at all levels of programming and policymaking. Those levels include reproductive health and economic, educational and political empowerment. Unfortunately, the UK economy has been hit badly by the Covid-19 pandemic and our foreign aid has been reduced accordingly. Can the Minister say if the G7 countries should create a gender equality fund that could be used in developing countries in south Asia, Africa and South America to educate and empower women? This would support SDG 5 and increase gender equality globally.

Lord Ahmad of Wimbledon: My Lords, I have noted the suggestion made by the noble Lord and we will put it to the Gender Equality Advisory Council, which will be headed within the G7 mechanism by my right honourable friend Liz Truss.

Lord Hendy: My Lords, is the Minister considering, as an important step towards equality between women and men, the United Kingdom following Uruguay, Namibia, Fiji and Argentina in ratifying International Labour Organization Convention No. 190, which was adopted by the ILO on 21 June 2019? The  convention is directed against violence and harassment at work, particularly gender-based violence and harassment, and stresses the importance of a work culture based on mutual respect and the dignity of a human being.

Lord Ahmad of Wimbledon: My Lords, perhaps I may write to the noble Lord on this.

Lord Jones of Cheltenham: How do the Government plan to use their time as president of the Convention on Cluster Munitions to promote the global disarmament agenda, thereby helping nations to provide education for girls?

Lord Ahmad of Wimbledon: My Lords, we continue to champion the cause of education for girls both in conflict zones and around the world. That will continue to be a priority for the FCDO.

Bishop of Gloucester: I understand that the Government are investing over £67 million in the What Works to Prevent Violence Against Women and Girls programme. What plans do they have to follow the lead set by Australia in developing a national primary prevention framework to tackle the root causes of bias and discrimination against women and girls?

Lord Ahmad of Wimbledon: My Lords, we have a range of programmes and projects that cover issues of discrimination against women and girls from an early age, including discrimination against their entry into education and their progress into employment. Of course, in conflict-related zones specifically, our initiatives such as the Preventing Sexual Violence in Conflict Initiative reflect the Government’s priorities in this agenda.

Tigray Conflict: Axum
 - Question

Lord Alton of Liverpool: To ask Her Majesty’s Government what assessment they have made of reports of a massacre at Axum in Tigray, which Amnesty International said may amount to crimes against humanity.

Lord Alton of Liverpool: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare my interest as a vice-chair of the All-Party Parliamentary Group on Eritrea.

Lord Ahmad of Wimbledon: My Lords, we believe that the allegations about human rights violations in the Amnesty report are credible. Over recent weeks, multiple reports, including from Human Rights Watch and the Ethiopian Human Rights Commission, have begun to document the scale of possible abuses and human rights violations in Tigray. Since the conflict started, the UK has called consistently for an end to the fighting, and I reiterate those calls  today, as well as the need for urgent independent investigations into the atrocities in Tigray in order to end impunity.

Lord Alton of Liverpool: My Lords, I thank the Minister for that reply. With vast numbers of Tigrayans having been displaced and 4 million now facing a manmade famine, reports from Amnesty and Human Rights Watch underline the allegations of crimes against humanity at Axum and allegations of an unfolding genocide. What are we doing to hold those responsible for this to account, including Nobel laureates? Why did we not jointly table last week a resolution with Ireland to the United Nations Security Council, despite China and Russia threatening to block it, along with supporting the international calls there for an immediate withdrawal of Eritrean troops from Tigray? Surely this is a prerequisite to ending the depredations in Tigray.

Lord Ahmad of Wimbledon: My Lords, I agree with the noble Lord that the situation in Tigray is dire. Since the conflict began, the UN Security Council has now discussed Ethiopia on four occasions. During the most recent discussions on 4 March, to which he referred, there was a clear consensus that the situation in Ethiopia, particularly the humanitarian situation, was of deep concern. It is regrettable, as he has pointed out, that certain members of the UN Security Council are continuing to block further discussion, and indeed public discussion, in the current sessions. However, we continue to press for actions in this respect.

Lord Triesman: My Lords, I welcome what the Minister has said, but obviously there is more to do. Those of us who were involved in trying to negotiate peace between Ethiopia and Eritrea a decade ago are dismayed by the fact that they are now united, but in the suppression of Tigray. Crimes of concern to humanity are being committed every day and it is no accident that there are highly organised and disciplined militaries on both sides. Can the Minister add to his comments about approaches to the United Nations and tell us what we are doing with the African Union, which can often be a very significant force for installing peace? Can he also comment specifically on the fact that many of the leading Tigrayans who have served in the Ethiopian Government have been absolutely vital to the UK’s interests in securing peace in Somalia and the northern Kenyan regions? They are eager to be in places where they no longer fear for their lives. They want to continue with their education and are keen to continue with their charitable work—

Earl of Courtown: My Lords, perhaps the noble Lord would curtail his questions and let the Minister answer now.

Lord Triesman: I wonder if the Minister would meet me to discuss this.

Lord Ahmad of Wimbledon: My Lords, on the noble Lord’s first question, there are currently no concerted efforts at dialogue between the conflict parties. Regrettably, while I agree with him that the efforts of the AU are important, they have not picked up yet  again. We will continue to call for Eritrean troops to leave, and to work with the AU as well as other partners to ensure peace in Tigray.

Duke of Montrose: My Lords, I strongly endorse the comments of the two previous noble Lords. In view of the more than three months of communications blackout, along with continuing reports of the killing and rape of civilians, the destruction of harvests and medical facilities, widespread looting and starvation, do Her Majesty’s Government agree that what has taken place in Axum is almost certainly being repeated across Tigray and that there is enough evidence to suspect that ethnic cleansing is taking place in the province? In the light of the adoption by the UK of the responsibility to protect commitment of the 2005 UN World Summit, including paragraphs 138 and 139, what further steps do Her Majesty’s Government plan to take to secure the protection of the Tigrayan population?

Lord Ahmad of Wimbledon: My Lords, the situation in Tigray is both challenging and dire, as I have just said. Our most recent efforts have included the formation of a joint humanitarian political team from the British embassy, which on 4 and 5 March visited Mekelle, the capital city of Tigray. The team met the provisional administration of Tigray and humanitarian agencies. Our efforts are both political and humanitarian in this respect.

Lord Chidgey: The reports that several hundred civilians have been massacred in Axum have been confirmed by the Ethiopian Human Rights Commission, contrary to the claims of its own Government. However, within the unfettered access that we apparently now have been granted in the region, will the Government press for evidence of the deliberate destruction of crops and intentional starvation? Will this be a test case for the UN special envoy for famine prevention and humanitarian affairs? Finally, what support are the Government giving Ireland, our closest neighbour in this context and a newly elected member of the UN Security Council, in its campaign to raise the situation in Tigray at the council’s meetings?

Lord Ahmad of Wimbledon: My Lords, on the noble Lord’s final point, we continue to work with Ireland and indeed, on 15 February, the Foreign Secretary spoke with the Irish Foreign Minister. On the issue of unfettered access, unfortunately, while commitments have been made, that is not the case. Access to Tigray remains very challenging even for humanitarian agencies.

Baroness Kennedy of Cradley: My Lords, the 24 Hours for Tigray global lobby started at noon today and either is hearing or is about to hear from young women discussing the trauma of rape being used as a weapon of war. Given the statements in the Amnesty International report about the extent of this war crime, and with International Women’s Day very much in everyone’s mind, what assurances can the noble Lord provide that the many reports about the alleged rape of women in Tigray as part of the war will be taken up and that there will be justice for them?

Lord Ahmad of Wimbledon: My Lords, as the Prime Minister’s Special Envoy on the Preventing Sexual Violence in Conflict Initiative, I say that this remains a key priority. We are deeply concerned about the credible reports. I was pleased to see the statement from SRSG Pramila Patten showing that teams are already working on the ground collecting evidence to ensure that those who have committed these crimes do not escape punishment.

Lord Grade of Yarmouth: My Lords, I declare my interest as a founder and current trustee of the Band Aid/Live Aid Trust—hence my interest in the subject. This is clearly a human tragedy. These territories have long been troubled by famine, war, et cetera. What action are the Government considering taking—for example, targeted sanctions, including economic sanctions? There is a lot of talk and discussion, but very little action. Also, does it make complete sense to cut the 0.7% spend on development in the middle of the pandemic, a time when the chair of the G7 should be setting an example? This might help in the region.

Lord Ahmad of Wimbledon: My Lords, the Government’s response to my noble friend’s second question is already well documented, but I agree that we must ensure change on the ground. He mentioned sanctions and I assure him that we will consider the full range of policy tools at our disposal.

Lord Collins of Highbury: My Lords, the Minister said that we must stop people acting with impunity in violating human rights. How are we responding to the call by the United Nations High Commissioner for Human Rights for an objective independent assessment? Also, how are we working with our allies on the dire humanitarian situation in terms of opening up corridors and getting aid into this very difficult area?

Lord Ahmad of Wimbledon: My Lords, there is a lot of work being done on the second question that the noble Lord raises, about opening up corridors, but, as I have already said, while declarations have been made, most recently by the Deputy Prime Minister of Ethiopia and the Human Rights Council, including his acceptance that there must be international investigations into allegations, we are yet to see this in practical terms. However, we are working very closely at the HRC, including with the office of the High Commissioner.

Lord Campbell of Pittenweem: My Lords, does the Minister share my feeling that these dreadful events at Axum are reminiscent of medieval barbarism, involving as they do the deliberate destruction of crops and the pillaging of the hospital and the pharmacy? What international assistance is available to assist this community to rebuild itself?

Lord Ahmad of Wimbledon: My Lords, the first step, as I am sure the noble Lord agrees, is to help the thousands of internally displaced people. Getting humanitarian access to them in terms of medical supplies and food remains a key priority. I agree that  we should then look at medium-term planning, but that cannot come until there is peace in Tigray. On the issue of crops being destroyed, I also know full well that there are also historic sites. The Axum site was an ancient historic city, rich in traditions of faith and in churches that allegedly have also been plundered. So there is a lot to do on the ground, but the priority must be access to Tigray to ensure that civilians get the support that they urgently need.

Lord McFall of Alcluith: My Lords, the time allowed for this Question has elapsed.
Sitting suspended.

Arrangement of Business
 - Announcement

Lord Duncan of Springbank: My Lords, the Hybrid Sitting of the House will now resume. I ask Members to respect social distancing.

NHS: Pay
 - Private Notice Question

Lord Hunt of Kings Heath: Asked by Lord Hunt of Kings Heath
To ask Her Majesty’s Government, further to the assumption set out in the NHS Long Term Plan Implementation Framework, published in June 2019, of a 2.1 per cent pay rise for National Health Service staff in the 2021/22 financial year, what plans they have to review their submission to the NHS Pay Review Body.

Lord Bethell: My Lords, our written evidence to the independent pay review body set out what is affordable. We have increased the size of the NHS workforce over the last decade and have committed a record-setting additional £33.9 billion by 2024-5 for the NHS to meet the rising demand for services. With strides being made in recruitment and retention, an enormous effort is under way to make the NHS a more inclusive and enjoyable place to work, with excellent well-being support for all staff.

Lord Hunt of Kings Heath: My Lords, the Government say that they cannot afford to give nurses a decent pay rise, yet they have managed to squander billions of pounds on management consultants, fly-by-night companies and friends of Ministers. The long-term plan built in a 2.1% pay rise for NHS staff next year; it was factored into the funding settlement and enshrined in legislation. It is one thing for the PM to be filmed applauding his appreciation for NHS staff, but no amount of clapping will help pay for rising living costs. Does the Minister agree that the Government should reverse this evidence and give staff in the NHS the increase they deserve?

Lord Bethell: My Lords, I start by saying how much nursing staff and all healthcare staff are appreciated, not only by the Government but by the entire public. Of course we stand by that appreciation, and there is no way that the Government have anything less than the most enormous amount of appreciation for all those who have committed so much during Covid. On test and trace, I remind the noble Lord that that is an essential service which delivers value for money and, of course, pay increases are recurring and last for a long time. However, the evidence to the pay review body is clear: affordability is a key challenge for the whole country and we wait for the pay body to review that evidence.

Baroness Brinton: My Lords, last year, at the height of the first lockdown, we on these Benches argued that all NHS and social care staff should receive a one-off payment from the Government as thanks from a grateful nation for their tireless dedication and sacrifice. Not only have they not received this but the Government are now reneging on this year’s pay rise as set out in the NHS 10-year plan. What on earth do the Government plan to do to retain and recruit staff after letting them down so badly?

Lord Bethell: My Lords, I am not sure that retention is necessarily the challenge that the noble Baroness suggests. There has in fact been a 26% increase in acceptances to nursing and midwifery courses when compared to last year, and 1,290 more applications were made in 2020 compared to 2019. The truth is that nursing is a challenging job but one that many people want to take up. There is a long queue of people who want these positions because they are rewarding in many different ways. We appreciate the contribution made by nurses and the whole healthcare sector, but there is no disguising the fact that these are attractive jobs, which many people wish to take up.

Lord Balfe: Does the Minister accept that it was not a 2.1% increase but a 2.1% addition to the bill, which included a number of emoluments that are added each year? It was not 2.1% for everybody; it was a whole package. The Government need to get their case across a bit better, particularly with what the Minister just said about recruitment. I suggest that the Government pay attention to getting their case across. As the Minister said, nursing, with its lifetime pension, is a very attractive proposition at the moment.

Lord Bethell: My Lords, the percentages are unbelievably complicated. It is difficult to stand by one single number to represent pay that goes to hundreds of thousands of different nurses under different circumstances. However, I agree completely with my noble friend. What is at stake here is not just one pay rise in one year but the entire package of circumstances in which nurses do their job. We are determined to ensure that that workplace package is as good as it can possibly be. We acknowledge that there are cultural challenges of working in the NHS, which we are fighting hard to improve. We recognise that training opportunities for nurses should be better and we are working hard to improve those. We recognise that nurses have little capacity for holidays, which is why  we are recruiting a very large number of new nurses. It is the entire package that we are focused on, which is why we have put forward the affordability argument as we have.

Lord McNicol of West Kilbride: My Lords, Ministers have time and again stated that supporting our nurses is a top priority but, as unions have pointed out, an offer that amounts to £3.50 per week looks more like a kick in the teeth than a top priority. I am sure there is one thing we can all agree on: nurses and other healthcare professionals have had to work in some of the most difficult, demanding and dangerous circumstances, and they have done so with astonishing care, compassion and commitment. The Government have got this badly wrong, and I urge them to reconsider their meagre, miserly, measly 1%.

Lord Bethell: My Lords, I reject the rhetoric of the noble Lord. We absolutely do support nurses, which is why we are focused on recruitment, training, culture and opportunities. It is not right to think that one pay rise represents the entire and sum contribution to the welfare of nurses. That is the response we get from nurses themselves, what the public understand, and what the Government’s guidelines are about.

Lord Willis of Knaresborough: My Lords, could you imagine any employer, other than those of the sweatshops of the Far East, seeing their workers perform heroics to save the business and, in the process, the lives of millions of their clients, only to be rewarded by having their wages actually cut? Does the Minister agree with the Health Minister Nadine Dorries, who expressed surprise at the generosity of the Government’s offer, or with the view that a good employer would first offer a substantial bonus to its staff before taking time to negotiate a fair and sensible pay award? If we can pay a bonus to local publicans for sourcing easily obtainable files, surely a bonus to those who have saved our lives should be a no-brainer for this Government.

Lord Bethell: My Lords, I agree with the noble Lord on the point about heroics—we appreciate those—but I do not agree that this represents a pay cut. On the broad thrust of the noble Lord’s point, I gently remind him that millions of people are out of work off the back of this pandemic. Lots of people have had an extremely tough time and face a period of unemployment. Nurses are well paid for the job, which is a secure job, and they have other benefits. There are many people in this country who look upon professional jobs in the NHS with some envy; we should not forget that some public sector jobs are, in fact, extremely well-paid.

Bishop of Worcester: My Lords, I appreciate the immense, unprecedented and unforeseen pressure that the Government are under as they struggle with the devastating effects of the pandemic on public finances. At the same time, as has been noted, we all want to recognise the huge debt of gratitude that we owe to nurses and other health workers. Recognising that would best be done by a pay increase. We are told that a 1% increase is all that can be afforded. Can the Minister comment on whether he thinks tackling the  estimated £2 billion lost annually through inefficiencies related to unnecessary A&E attendance and GP consultations might give more wriggle room?

Lord Bethell: My Lords, I completely endorse the right reverend Prelate’s point about the heroics of—and the debt that we owe—nurses, but I just cannot agree with him that the best way of recognising the contribution of nurses is to give them a pay increase. That simply is not my experience of workplace engagement. Yes, pay rises are important and a recognition of work done, but there are other, much more important reasons why people work. They work for the status of that role, for the opportunities that it gives them in their life, for the security that it gives them and for the collaboration of working with fellow members of staff. There is a whole package of reasons why people do the work that they do. We live in extremely economically challenging times. It is right that the advice given to the pay review body looks at the entire package, not just at the pay increase.

Baroness Thornton: The Minister is quite right: it is not just about the 1% rise. A newly qualified nurse will earn £21,000 in 12 months; that is their starting salary. The consultants building the track and trace system, at £7,000 an hour, earn more than that amount in under four hours. Perhaps that will help the Minister understand why so many people are outraged at the proposed 1% so-called pay rise. Will he explain to the House what values and priorities he holds that lead him to believe that the Government’s decision is an acceptable one?

Lord Bethell: My Lords, the noble Baroness makes some vivid comparisons on completely incomparable pay differentials. The values that we have are absolutely aligned with public service values. We are determined to create a workplace that is just, fair and equitable. We are committed to giving people a fair reward for the work that they do and to giving people decent job prospects within that role. Those are the values that people go to work for and are motivated by. We need to put together a package that works across the piece and is not narrowly focused on one particular material point, such as pay. I stand by what I said previously: the package of measures that was put in our evidence to the pay review body sees all those values in the round.

Baroness Jolly: My Lords, for the last 10 years NHS pay has lagged behind inflation. Year on year, health professionals have had less to spend than they had the previous year, and the 1% pay rise does not help as inflation removes any increase. Apart from the moral case put by noble Lords, this is not good economics. If people are paid more, they spend more by putting cash back into the economy. Will the Minister ask the Chancellor to look at this again?

Lord Bethell: My Lords, I am at a slight disadvantage because I am not quite sure that I can substantiate the noble Baroness’s view that pay has lagged behind inflation. Her economics lesson is extremely interesting but not one that the Chancellor is necessarily persuaded by. Where she is entirely right is that pay is  an important aspect of any recruitment campaign by the NHS, and that is why we have put recruitment at the heart of our commitment to it. That is why we are recruiting 50,000 nurses and making a very large number of GP appointments. We are seeing huge gains in achieving those targets, which reflects the fact that there is not a massive or structural misalignment in our pay arrangements.

Lord Sikka: My Lords, the Government paid consultants up to £7,000 a day for advice on test and trace but nurses risking their lives are offered less than £1 a day. Does the Minister agree that this contempt for nurses is disgraceful because a higher award can easily be funded? For example, taxing capital gains in the same way as earned income can generate additional tax revenues of £14 billion a year.

Lord Bethell: I am grateful for the economics lesson from the noble Lord. I will take those recommendations and pass them on to colleagues at the Treasury.

Lord Scriven: My Lords, the £37 billion found for the predominantly private sector-led test and trace system equates to spending more than £1 million every day for the next 100 years. How does the Minister reconcile that with the statement that the Government cannot find the money to fund more than a 1% pay increase for front-line NHS staff?

Lord Bethell: My Lords, the test and trace system is part of an essential response to a virus pandemic that has shaken the world, and the costs of that pandemic are enormous. I regret them very much and wish with all my heart that we did not have to spend this money on our pandemic response, but there is no other way of cutting the chains of transmission and responding effectively to this awful disease. The ongoing pay arrangements for nurses and doctors are commitments that we will live with for years to come, and there is a difference between the two.

Lord Harris of Haringey: My Lords, I should declare that my wife works in the NHS. Does the Minister agree with his ministerial colleague Nadine Dorries that the 1% settlement is generous because it is better than a pay freeze? Nurses get maybe 70p a day while billions are wasted on crony contracts and £200,000 is being spent on titivating a Downing Street living room, replacing decorations that are barely three years old. Does the Minister—or the Chancellor, for that matter—have any idea what living on £25,000 a year is really like?

Lord Bethell: My Lords, I cannot hide from the noble Lord the fact that across the public sector there is a pay freeze. The only area that that does not apply to is the NHS, a point that I think my colleague made very thoughtfully. I remind the noble Lord that many in the private sector have lost their jobs and prospects altogether and that there is a massive economic challenge on the horizon. We fool ourselves if we close our eyes to that and regard the public sector as somehow sacrosanct and immune to the larger economic challenge.

Lord Duncan of Springbank: With apologies to the noble Lord, Lord Rooker, I am afraid the time allowed for this Question has now elapsed. I am going to take a moment or two to allow people who want to escape from the Chamber to do so, and we will resume in a moment or two.

Women’s Health Strategy
 - Statement

The following Statement was made in the House of Commons on Monday 8 March.
“With permission, I would like to make a Statement about the women’s health strategy. Today is International Women’s Day, and on this important day we must acknowledge that for generations women have lived with a healthcare system that is designed by men, for men. As a result, women have been underrepresented in research. Despite women making up 51% of the population, we still know little about some female-specific issues, and there is less evidence and data on how conditions affect women and men differently. Despite living longer than men, women spend a greater proportion of their lives in ill health and disability, and there are growing geographic inequalities in women’s life expectancy. That makes levelling up women’s health an imperative for us all, so we must meet our goal of extending healthy life expectancy by five years by 2035.
There is already a lot of excellent work under way to achieve that. The Government are working on the next strategy on tackling violence against women and girls, and we have announced plans for a new sexual and reproductive health strategy, led by the Minister responsible for prevention, public health and primary care—my honourable friend the Member for Bury St Edmunds (Jo Churchill)—which we plan to publish later this year.
Although this focused work is vital, it is also important that we take an end-to-end look at women’s health from adolescence to older age. I am thrilled to inform the House that today we are embarking on the first government-led national women’s health strategy for England. It will set an ambitious and positive new agenda to improve the health and well-being of women across England. As we know, not all women have the same experience, so we want to hear from as many women as possible, from all ages and backgrounds, about what works well and what we need to change as today we launch our call for evidence.
The call for evidence, running until 30 May, seeks to examine women’s experiences of the whole health and care system, including mental health, disabilities and healthy ageing, as well as female-specific issues such as gynaecological conditions, pregnancy and postnatal support, and the menopause. The call for evidence is based around six core themes, which cut across different areas of women’s health, and I would like to set them out briefly in the House.
The first pillar is placing women’s voices at the centre of their health and care. We know that damaging taboos and stigmas remain around many areas of women’s health, which can prevent women from starting conversations about their health or seeking support for healthcare. When women do speak about their  health, all too often they are not listened to. As the Minister for Patient Safety, I regularly hear from and meet people who have been affected by issues of patient safety. As independent reports and inquiries have found, not least the Cumberlege review and the Paterson inquiry, it is often women whom the healthcare system fails to keep safe and fails to listen to, and this has to change.
The second pillar is improving the quality and accessibility of information and education on women’s health. If we are to tackle taboos and ensure that women’s voices are heard, the provision of high-quality information and education is imperative. To give a timely example, March is Endometriosis Awareness Month. Endometriosis is a common condition affecting one in 10 women of reproductive age, yet the average diagnosis time is seven to eight years. It greatly saddens me to hear how so many women think—or worse, are told—that the debilitating pain and symptoms that they are experiencing are normal or imagined and that they must live with them. We must ensure that women have access to high-quality information about health concerns. We must also ensure that health and care professionals can access the necessary information to meet the needs of the women they provide care for.
The third pillar is making sure that the health and care system understands and is responsive to women’s health and care needs across their life course. Women have changing health and care needs across their lives, and we know that specific life events, or stages of life, can influence future health. For example, we know that women who have high blood pressure or pre-eclampsia during pregnancy are at greater risk of heart attack and stroke in future. We also know that women can find it difficult to access services that meet their specific needs, or that meet their needs in a convenient place or time, and that there are significant inequalities between different groups of women in terms of access to services, experience of services and health outcomes. For example, women of black ethnicity are four times more likely than white women to die in pregnancy and childbirth. That is why I recently established the Maternity Inequalities Oversight Forum to bring together experts to consider and address the inequalities of women and babies from different ethnic backgrounds and socioeconomic groups. There is still more to do, so levelling up women’s health must be a priority for us all.
The fourth pillar is maximising women’s health in the workplace. The pandemic has brought home just how important this is. Some 77% of the NHS workforce and 82% of the social care workforce are women, and throughout the pandemic women have been on the front line, making sure that people receive the health support and care that they need.
There is some evidence that female-specific health conditions—such as heavy menstrual bleeding, endometriosis, pregnancy-related issues and the menopause—can affect women’s workforce participation, productivity and outcomes. There is little evidence on other health conditions and disabilities, although we know that common conditions that can lead to sickness absence—for example, mental health conditions and musculoskeletal conditions—are more prevalent in women. Investment in women’s health in the workplace is therefore essential to women’s  ability to reach their full potential and contribute to the communities in which they live, so that is a fundamental pillar of our strategy.
The fifth pillar is ensuring that research, evidence and data support improvements in women’s health. We have a world-class research and development system in the UK, but women—particularly women from ethnic minorities, older women, women of childbearing age, those with disabilities, and LGBT women—have been underrepresented in research. This has implications for the health support and care that women receive, their options for and awareness of treatments, and the support that they can access afterwards. We must work to ensure that women and women’s health issues are included in research and data collection and so finally end the data gap that sadly exists. The better the evidence, the better we can understand the health and care needs of women and deliver the change that we need to see.
Our sixth and final pillar is understanding and responding to the impacts of Covid-19 on women’s health. This pandemic has taught us so much about our society and our health and care system. As we build back better after this pandemic, we must make sure that we fully understand the impact of Covid-19 on women’s health issues and what we can do to take that understanding forward.
The call for evidence is about making women’s voices heard. We want to hear from women from all backgrounds and will be inviting all organisations and researchers with expertise in women’s health to provide written evidence, too. We will respond to the call for evidence after the summer and we aim to publish the strategy later this year. I hope that the strategy will be welcomed across the House.
I thank the Members who have been working with us on this vital agenda. I thank my honourable friend the Member for Thurrock (Jackie Doyle-Price) for breaking down taboos around women’s health through her advocacy in the House, and my honourable friend the Member for Gosport (Caroline Dinenage) for her initial work on the strategy. I also thank the Members who lead the all-party parliamentary groups on women’s health, on endometriosis, on sexual and reproductive health, on women and work, and many more. We will keep working with Members in all parties as we take forward this essential work.
This strategy marks a turning point for women in this country. We are making women’s voices heard and putting them at the very centre of their own care, so that we can make sure that our nation’s health system truly works for the whole nation. I commend this Statement to the House.”

Baroness Thornton: My Lords, we welcome this Statement, made yesterday on International Women’s Day. We believe that the six pillars it outlines are important signals of the need to take women’s health very seriously. It is welcome that the Government want to understand the plight of women throughout the country. However, although the Statement says that this strategy is the first of its kind, that is not the case. For example, when the Government launched the women’s mental health task force in 2017, the  Minister responsible for mental health at the time, the honourable Member for Thurrock, Jackie Doyle-Price, said:
“This report is a call to action for all providers, commissioners and practitioners across the health care system to drive forward the ethos of trauma- and gender-informed mental health care.”
That is absolutely right, but we have to ask: why are the Government asking exactly the same questions four years later? The three matters that I want to raise with the Minister are: the questions that arise out of the effect of Covid on women’s health and well-being; the troubling matter of breast cancer and sexual health; and the implementation of the recommendations of the Cumberlege report.
Analysis of Covid-19 data from around the world suggests that men make up a higher share than women of reported hospitalisations, intensive care admissions and deaths, but the impacts of the pandemic extend far beyond health outcomes for people who have been infected with the Covid virus. There have also been significant economic impacts from measures adopted to control the spread of the virus, and those have affected women in specific ways. For example, what support can be offered to a woman who experiences baby loss without her partner by her side?
The Statement is right to highlight the fact that black women are four times more likely to die in pregnancy or childbirth. I welcome the launch of the forum but the Government have known about these inequalities for many years. Now we need to see some actual investment and action.
Covid-19 has worsened the mental health crisis among young women in the UK. Before the pandemic, young women aged 16 to 30 had the worst mental health of any age and gender group in the population. In the last 12 months those in this same group have experienced a bigger fall in their mental health than any other. The mental health of teenage girls and young women is now a very serious health issue. This will need some investment and attention in the call for evidence launched yesterday.
I turn to the issue of working mothers and the increase in the burden of care. The Government were quite rightly criticised for their sexist “Stay at home” advert depicting women doing schooling and housework. I am very glad it was withdrawn at short order. But this is the reality of the lockdown in many households with young children. The pandemic has revealed stubbornly persistent gender stereotyping in the division of domestic labour. It has shown that men and women are not equal when it comes to unpaid childcare and housework.
Before the pandemic, women did more than 60% of home childcare. When schools and childcare closed during the first lockdown, they took on roughly the same share of the massively increased burden of additional care. Evidence from the ONS indicates that women have taken on even more of the burden of home-schooling during the 2021 lockdown. Two-thirds of mothers, compared with half of fathers, report that they have personally home-schooled their children. Half of those who have done home-schooling report that this has negatively affected their mental health and well-being.
Looking at older women, before the pandemic, those aged 70 and above enjoyed a relatively high level of mental health compared to the population as a whole. But they have experienced one of the biggest falls, far greater than that of older men. An important factor is of course that older women are likely to experience a higher level of bereavement, since older men have a higher risk of death from Covid-19. We have seen a higher level of grief following deaths, with the inability to say goodbye to loved ones. The cost of grief has received relatively little attention from economists, with some notable exceptions, but it is a very important factor in the mental health of older women in our society. The cost of grief needs to be factored into this inquiry.
Women are still being misdiagnosed in 2021, with male bodies being seen as the default body. There is a huge historical data gap in understanding women’s health needs. It is shocking that women are 50% more likely to be misdiagnosed following a heart attack, simply because their symptoms differ from those of men. The research of the government commission needs to bridge that divide.
I turn to breast cancer specifically. Almost 11,000 women in the UK could be living with undiagnosed breast cancer because of the Covid-19 pandemic, according to new analysis by Breast Cancer Now. It says that 10,700 fewer people were diagnosed with breast cancer between March and December than one would have expected. That data has to be factored into this commission of inquiry.
I turn now to women’s sexual health. Jo’s Cervical Cancer Trust said that
“600,000 tests failed to go ahead in the UK last April and May … in addition to a backlog of 1.5 million appointments missed annually.”
Thousands of IVF cycles were cancelled or postponed in the early stages of the pandemic, with many clinics then facing a backlog of patients. Again, this needs to be factored into this research.
One of the most potent symbols of how the health service fails women is that identified in the report of the noble Baroness, Lady Cumberlege, First Do No Harm. It shows decades of women being ignored and dismissed by the medical profession and all of those in it. The report talked of the
“disjointed, siloed, unresponsive and defensive”
health service not adequately recognising the needs of women over decades. Surely the best way to mark International Women’s Day would be to commit to implementing all the recommendations in that report, would it not?

Baroness Brinton: My Lords, the warm words in this Statement regarding women’s health inequalities are certainly a start, but there is so much to do. Many of us in your Lordships’ House have been working on the Domestic Abuse Bill, where looking at access to health and mental health support for victims—the vast majority of whom are women—has exposed that there is a major problem.
Mental health has been brought into sharp relief, as the noble Baroness, Lady Thornton, has already said. But we know that it has been underfunded, and services pre- pandemic were already at breaking point. The  pandemic has really exposed these shortcomings. What are the Government going to do to provide that parity of mental health services they committed to in 2015, which women in particular are finding difficult to access?
The Statement talks about women’s experiences of specific services. For pregnancy and maternity support, the pandemic exposed that, for far too long, pregnant women have been isolated and their partners not permitted to be with them. My own niece had a baby during lockdown and was not particularly well. When she went in for her weekly tests, not knowing whether she would have to stay in until the birth, her husband was not allowed into the hospital with her until she was actually in the delivery suite. That caused tension for far too long.
We have also seen that the vital role of health visitors and community nurses, which has been curtailed somewhat, is absolutely evident when they are not there. Community services for young mothers are really important, and I hope the Government will look at that.
The Statement talks a lot about endometriosis. I was diagnosed with endometriosis well over 40 years ago. I am pleased to say that treatment in hospitals has advanced considerably since those days. But what seems not to have changed is diagnosis and referral. I ask the Minister this: what support is there to train all GPs, primary care nurses and employers to recognise when women have these problems? They should not be dismissed as “a bit of a bother” because all women have a problem at that time of the month. It is not just an information issue for women themselves to recognise it. We need the professionals and the business community to understand that endometriosis is a very serious illness.
The Statement notes that
“77% of the NHS workforce and 82% of the social care workforce are women”.
They are absolutely on the front line but too often have been let down. Despite that enormous ratio of women in the workforce, there are still pay gaps—certainly at a higher level. It would be interesting to see the publication of the percentage of male and female staff at each level and for all trusts and CCGs to publish their pay gaps on an annual basis, as we ask large companies to.
We also know that a higher percentage of BAME women were at risk of serious Covid and death. This was particularly amplified for our front-line NHS and social care staff.
I echo the points raised by the noble Baroness, Lady Thornton, about caring responsibilities. It is not just about care for children who are home from school. The pandemic has brought into sharp relief the unpaid carers of adult family members. I would like to make a call out, and I hope the Minister will support me: when it is time for every one of us to fill in our census form in 10 days’ time, please will unpaid carers tick the box saying that they are carers? We need to know how many people out there are doing this. We know that the majority of them are women.
The Statement talks about issues facing women with disabilities. Yesterday, it was wonderful to see a  series of tweets from disabled women about their lived experiences in our society. Some of it, especially on access to health services, was pretty depressing too.
Women with learning difficulties are also often at the end of the queue for health treatments. Ciara Lawrence, who is a Mencap ambassador, is an absolute shining example of how women with learning difficulties can get access to those services. She went for her cervical smear test a year ago. Since then, she has not only been promoting it among other young women with learning difficulties but is teaching the NHS how to work with women with learning difficulties to encourage and support them to have their tests. Women with learning difficulties also say that access to family planning services can often be harder too. Will the Government make sure that these issues for this group of disabled women are addressed?
The paper refers briefly to LBGT women, who also face particular difficulties in accessing services throughout their adult lives. What will the Government do to reach both these groups? I note that, towards its end, the Statement talks formally about working with women’s organisations, but so much will be missed if women who also have other protected characteristics—and their organisations—are not specifically asked.

Lord Bethell: My Lords, the noble Baronesses, Lady Thornton and Lady Brinton, have both made their points incredibly well, and I will not argue the toss about any of them. I completely acknowledge that Covid has hit women harder than men, for all the reasons that the noble Baronesses have given—I could have listed even more. Women who have worked from home have undoubtedly shouldered more of the burden and done more of the teaching, and that has led to adverse mental health outcomes. Those outcomes are a real struggle for a health system to cope with when it is trying to deal with social distancing. We have done our best, using telemedicine to try to bridge the gap, but there is a shortfall and we will have to work extremely hard to catch up. I know from my own experience the challenge that young girls in particular have felt during Covid, and the statistics confirm that.
I agree with the observation made by the noble Baroness, Lady Thornton, about IVF—it has been extremely tough. It has been hard for the HFEA to restart clinics, and there are women for whom the clock is ticking who have no other options. We have worked really hard to try to meet the practicalities of that service but there has been bad news for some people. That is felt very hard indeed.
The noble Baroness, Lady Brinton, spoke very movingly about pregnant women whose partners had not been able to be there for the scan. There are sometimes good reasons for that because the scanning equipment may be in the basement of airless diagnostics rooms where social distancing is not possible and the risk assessment is very tough. That does not detract from the fact that that has massive and distressing mental health consequences.
The noble Baroness, Lady Thornton, mentioned baby loss. There are many aspects to this. Bluntly, deaths during Covid hit all of us hard but women in  particular. The noble Baroness spoke movingly of making grief an aspect of health planning; that is a good point, well made.
I completely accept the point made by both noble Baronesses that this plays into a long-term problem—it is not isolated or new. The review by my noble friend Lady Cumberlege paints a very clear picture of a defensive and siloed system that does not always do well for women; the culture is not always right and the practicalities do not always suit women’s lives and women’s bodies. The clinical trials regime has too often suited men. I will not defend every point that the noble Baronesses have made but I pay tribute to those who ran the clinical trials for the vaccines and did an enormously good job of recruiting women and getting a gender balance in those very important trials.
The noble Baroness, Lady Brinton, is, however, also right about data: too often it is skewed towards men. She mentioned in particular data about LGBT and disabled people and the importance of the census, which I completely endorse. But I know from my own work in the data area that too often our data is skewed away from those who belong to gender, disability or ethnicity minorities. The critical example—the one that is quite rightly often cited—is heart attacks, where the male symptoms are cited and the female symptoms are not. That is such a graphic and good example.
The noble Baroness, Lady Brinton, is right to raise pay gaps and representation, as is the noble Baroness, Lady Thornton, to cite the treatments for breast and cervical cancers, which have not always met the need.
I will not defend each and every one of these points. I would like to convey, however, the strong sense that we are trying to get one thing right in particular: listening. Anyone who reads the Cumberlege report, or speaks to my noble friend, will be struck by the really powerful testimony of patient groups who said that what agitated them most—more than almost anything else—was the feeling that they were not listened to. That has many effects, but two in particular. One is that we do not hear the symptoms and diagnostics: we get the health recommendations wrong because we were not listening. The emotional consequences of illness are, therefore, amplified. People feel frustrated and agitated because they can tell that they are not being listened to. We are absolutely determined to get that right.
This is a big exercise—bigger than the mental health exercise, because we have opened it up to the general public. We have had a phenomenal response, even in the day that it has been open, with more than 2,000 responses from the general public—a figure that I expect to grow dramatically.
We want to ensure that this exercise rights the wrongs because we really listen to women: we give them a platform and an opportunity to be heard and our response will be judged by whether we have truly listened to what we have been told.
I urge all noble Peers to put their evidence before the commission. We want a really good response that is truly diverse. There is always an anxiety in these situations that the groups with the loudest voice will predominate, but we are determined to make this  evidence-gathering as diverse as possible. So I call on all in the Chamber to submit their evidence and encourage and enable those who have something to say to use this opportunity with vigour.

Lord Duncan of Springbank: My Lords, we now come to the 20 minutes allocated for Back-Bench questions. There are 13 questioners and only 20 minutes, so pith is the order of the day.

Lord Farmer: My Lords, I have constantly argued against the lack of emphasis on prevention in the Domestic Abuse Bill and have been assured that the domestic abuse strategy and guidance will fill that gap. Domestic abuse disproportionately affects women’s mental and physical ill health, so will the new women’s health strategy prioritise its primary prevention, rather than, as usual, simply addressing its terrible harms?

Lord Bethell: I pay tribute to my noble friend for his campaigning on this important cause. It is not the specific focus of the health strategy but it will play a part in it, and I encourage my noble friend to submit the characteristically detailed evidence, for which he is so well known, to this important evidence-gathering process.

Lord Kakkar: My Lords, I draw attention to my declared interests. In taking forward an initiative for clinical research as part of their G7 health agenda, how do Her Majesty’s Government propose to ensure alignment of the clinical research regulatory framework so that the approval of innovative devices and therapies is predicated on clinical trial and registry methodologies with appropriate representation of women, including those from ethnic minorities?

Lord Bethell: The noble Lord makes a really good point. I am not sure whether we have considered the gender aspect of the clinical trials work programme in our G7 agenda. It has been very much about pandemic-preparedness and ensuring that next time we are able to share clinical trial information. Of course, we pat ourselves on the back for our own vaccine clinical trials in the UK, which, I think, have met a new standard for gender representation. He makes a good point, however, about making that case in our G7 work programme, and I will take it back to the department for further consideration.

Baroness Andrews: My Lords, I welcome the consultation and hearing women speak for themselves. It is very encouraging that there has been such an immediate and very positive reaction. We have known for a very long time that health inequalities affect women specifically and disproportionately, and we can take action without necessarily waiting for the consultation—for example, the 2018 BMA report on women’s health showed that even women’s life expectancy had deteriorated, and it recommended changes in medical training and education. As the Minister says, getting this consultation right is a big challenge, but can he assure me that, however challenging it is, the findings will be heard, followed up, acted on and invested in?

Lord Bethell: I reassure the noble Baroness that we are committed to getting this right. The Minister of State and Secretary of State are both very committed to this agenda, and the whole healthcare system has tuned in to the importance of getting this right. I pay tribute to some of the fantastic women whom I have worked with during the pandemic at the highest levels of the healthcare system. I will not do a rolling name check now, but I reassure the noble Baroness that there are some phenomenal female leaders at the top of the NHS, social care and science, who will, I am sure, personally drive this agenda forward.

Baroness Jolly: My Lords, the Statement yesterday addressed “taboos and stigmas” around areas of women’s health, and the greatest of these must be FGM, which was not mentioned yesterday. In the year to March 2020, there were over 6,500 women and girls in whom FGM was identified: that is over 15 women a day that we know about. How do these girls and women fit into the national strategy?

Lord Bethell: My Lords, we are of course drafting the national strategy, and we are collecting evidence on what its priorities should be. Undoubtedly, FGM should be in there; it is the most horrific crime, and it still touches far too many girls’ and women’s lives. I would like to see this country rid of it forever as soon as possible, and I encourage the noble Baroness to submit evidence on that point so that we can move clearly on it.

Lord Bourne of Aberystwyth: My Lords, the Statement rightly identifies the concern of mental health. Given the particular challenges experienced by women in the pandemic, from domestic abuse and disproportionate job losses to increased caring responsibilities, I ask my noble friend to give special focus to this area of research. I also applaud addressing the need for proper representation in the research programme of women from ethnic minorities, including from the Gypsy, Roma and Traveller communities .

Lord Bethell: My Lords, my noble friend touches on two very important points. He is entirely right that mental health has previously been underrepresented in the strategies of our healthcare. I hear loud and clear noble Lords who repeatedly make the case for a greater focus on mental health, and I take that message back to the department as much as I can. I reassure him that mental health will be very much a priority in this area. The two facts—that it is often women who are connected with mental health issues and that it is women who are often overlooked—are probably connected. It is extremely challenging for us to get women from ethnic minorities, for instance those from a Gypsy or Roma background—that is such a good example—fully engaged in our healthcare strategy. If the noble Lord has any suggestions or recommendations for how we can better engage with them, I invite him to submit evidence to the consultation.

Baroness Blackstone: My Lords, I draw attention to my interests as chair of the trustees of the Royal College of Obstetricians and Gynaecologists. I warmly welcome this Statement, but we know that  women’s healthcare is too often fragmented and unco-ordinated. So how will the Government ensure that their different strands of work on women’s health—this strategy, the sexual health strategy and the violence against women and girls strategy—are all properly aligned and based on a life course approach to women’s health, avoiding the creation of even more fragmentation for women?

Lord Bethell: My Lords, the question of fragmentation does not affect women alone; it is a problem across the healthcare system. However, the noble Baroness is entirely right: some of the conditions that afflict women in particular are not properly prioritised, and, therefore, the pathways connected with them are not as developed as they should be. That is the kind of challenge that we wish to address. However, the overall macro point is this question of listening: have we really listened to women—their symptoms, needs and health priorities—or are we behind the curve on that? I suspect that, too often, the health priorities that women would like to see emphasised simply have not been heard by the system.

Lord Wigley: My Lords, I draw attention to my registered interest as a vice president of Mencap. In presenting this Statement to the House of Commons yesterday, the Minister stressed that the inquiry that the Government is initiating will specifically include disabled women and those with mental health issues—something that I greatly welcome. Will the Minister confirm that this group will also specifically include, in their own right, women who have learning disabilities, because they are disproportionately vulnerable to illnesses that have no relationship to their disabilities, which places them in potential double jeopardy and needs to be addressed in its own right?

Lord Bethell: Yes, I can reassure the noble Lord that the call for evidence is open to everyone aged 16 and over, which, of course, includes people with disabilities and learning disabilities. The online survey within the call for evidence specifically mentions disabilities throughout, and I reassure the noble Lord that the evidence that we gather with regard to disabilities and learning disabilities will be considered extremely carefully to inform the priorities, content and actions of the strategy.

Lord Lucas: My Lords, should we be looking at leveraging the great success that we have had in developing online medicine during the pandemic to provide women with unmediated, immediate and direct access to specialist services on chronic issues such as menstruation, menopause problems and so on? After all, this is a structure that we have used successfully for many decades for eyes and teeth, and it is one that might also suit the trans community.

Lord Bethell: My Lords, as Minister for Innovation I favour using technology and the latest techniques wherever possible to provide options and choices for all patients, including women, to address their conditions. With women, the delicate question of their bodies, and the different functioning of their bodies to men’s, is one that the health system has to reconcile itself to. I do not regard technology as a  panacea to that central challenge; in fact, I think that many of the issues that women face will require face-to-face consultations, and we remain committed to ensuring that that is an option for everyone.

Baroness Bennett of Manor Castle: My Lords, I will not ask the Minister whether he has read Invisible Women by Caroline Criado Perez—or the medical chapter at least—but, if he has not, I would recommend it. One of the things that it highlights is how many widely and long-used drugs have never been tested for any sex and gender variations in responses. Do the Government have a systematic programme for checking that all drugs have been so appropriately assessed—so that, when the results of this call for evidence are received and acted on, appropriate treatments are available to the newly enlightened medical systems?

Lord Bethell: My Lords, I have previously referred to the challenge of gender-comprehensive clinical trials. There is growing evidence that drug prescriptions should be personalised a great deal more than they are, right across the board—not just on a gender basis but on genomic, ethnic, age and weight bases as well. The noble Baroness makes an extremely good point on this. I cannot guarantee that we will retrospectively conduct gender-specific clinical trials on the full library of medicines in the medicine cabinet, but we are keen to aspire to ensuring a future commitment to gender-specific clinical trials going forwards.

Baroness Stroud: My Lords, in the ministerial foreword to the Women’s Health Strategy, the issue of data gaps has been highlighted. One such data gap I would like the Government to look at is the way in which abortion complication data is gathered. The Minister in the other place confirmed in a recent Written Answer that the only method the department uses to gather this data is via HSA4 forms. Between April and June 2020, from the 23,000 at-home abortions, these forms reported just a single complication, yet FOI requests to just six hospitals during the same period suggested that women were presenting due to complications at a rate five times higher than that reported by the Department of Health and Social Care. Moreover, there were 36 999 calls due to at-home abortion complications every month to the ambulance service. As part of the Women’s Health Strategy, will this gap be addressed, and does the Minister agree that the number of women who present to hospitals due to incomplete abortions requiring surgery or retained products of conception should be collected centrally?

Lord Bethell: My noble friend makes her case extremely powerfully, and the numbers she cites are extremely persuasive. I do not have a full brief on the treatment of abortion complication statistics at my fingertips, but she alludes to exactly the kind of data gaps that we wish to address in this consultation period and in the emerging strategy. If she would like to submit the evidence she has just described, we will definitely take it on board and use it as part of our strategy-drafting exercise.

Baroness Ritchie of Downpatrick: My Lords, participants in clinical trials for breast and ovarian cancer not only take the medication as part of those clinical trials, whether they are double-blind or whatever, but give information about their genomic background and their ongoing assessments. Would it be possible, subject to their permission, to use that information from women as part of the strategy for updating and improving women’s health?

Lord Bethell: The noble Baroness is way ahead of me on that extremely specific point. I would be very happy to understand it more clearly, and if she could write to me with the details, I would be happy to take it on board.

Baroness Warsi: My Lords, I welcome the Statement and particularly its commitment to ensure that all women’s voices are heard in setting out the health strategy, so can my noble friend confirm what platforms will be used to publicise the call for evidence and what languages it will be promoted in? Particularly in communities where the spoken word is more popular than the writing down of experiences, what efforts will be made to allow women to contribute to this call for evidence via face-to-face interviews, albeit virtually?

Lord Bethell: My Lords, we are largely inviting written submissions from individuals and organisations with expertise in women’s health. It is envisaged that this could largely be done either by individual researchers, royal colleges, think tanks and third sector organisations, as well as the general public. There is an online platform and the online survey accommodates screen reader support, allowing for questions and answers be rendered in other formats, such as spoken language or Braille output. I accept the thrust of my noble friend’s point that we need to do enough to reach ethnic minorities and those from hard-to-reach populations, who should have a voice in this kind of exercise. Let me take that point back to the department and I will write to her accordingly.

Baroness Stuart of Edgbaston: My Lords, I welcome the Statement and I welcome what the Minister said earlier in response to a question about FGM. I know from the work done in Birmingham hospitals that the problem is probably much wider than any of us appreciate. At the end of this consultation, if the Minister finds that, in some areas where we asked for data, the data was not forthcoming, but we know we ought to seek more data and more information, will he undertake to do so to identify problems where part of the problem is that they are still very much hidden?

Lord Bethell: This debate is, unfortunately, not the place for me to be able to make that sort of commitment, but I completely take on board the point that the noble Baroness makes. There are hidden crimes in our communities and we cannot sit back and wait for them to present themselves; we have to go and find the evidence in order to meet the challenge. I am sorry to repeat this point, but I invite the noble Baroness to make this point in her evidence to the consultation. It is exactly that kind of insight that we are seeking to elicit, and the strategy is exactly the right platform for us to be able to make those kinds of points.

Lord Duncan of Springbank: Noble Lords have taken my call for pith to heart so, now that all questions have been asked, we will take a brief pause to allow the Room to reassemble itself ready for the next business.
Sitting suspended.

Non-Domestic Rating (Lists) (No. 2) Bill
 - Third Reading

Motion

Lord Greenhalgh: Moved by Lord Greenhalgh
That the Bill do now pass.

Lord Greenhalgh: My Lords, in moving this Motion, I express my thanks to noble Lords for their helpful insights and support throughout the proceedings. I especially thank the noble Baronesses, Lady Pinnock, Lady Bakewell and Lady Thornhill, and the noble Lords, Lord Kennedy, Lord Addington, Lord Shipley, Lord Stunell, Lord Moynihan, Lord Bourne and Lord Thurlow. I also thank the Local Government Association and the Valuation Office Agency for engaging with my officials during the passage of the Bill and, indeed, even before it was introduced in the other place.
Every revaluation requires the co-operation of all stakeholders involved in business rates. I thank the Rating Surveyors’ Association, the Royal Institution of Chartered Surveyors and the Institute of Revenues, Rating and Valuation. Their expertise and support have been, and will continue to be, a central part of the revaluation process. Finally, I thank my department’s Bill team—Nick Cooper, Rhys Tomlinson, Nick Pellegrini, Tom Adams and Lee Davies, as well as Sam Loxton in my own private office—for their support throughout this process. I beg to move.

Lord Duncan of Springbank: The Question is that this Bill do now pass. As many as are of that opinion shall say “content”.
I am sorry—I am being too quick this time. I call the noble Lord, Lord Kennedy.

Lord Kennedy of Southwark: My Lords, I thank the noble Lord, Lord Greenhalgh, for his engagement on the Bill. As always, he was very generous with his time and I have enjoyed working with him. Also, through him, I thank all the officials in his department. Again, they were generous with their time and open in engaging with me.
This is a very small, one-clause Bill, but it raises very important issues and the debates we had were much wider than the one clause itself. We all love our high streets. We love the pubs, cafés and shops we go to and I hope the Minister will take away all the issues we raised in the discussion of the Bill and look at them because, yes, it is great that we can have online deliveries, but getting a box to your front door is not quite the same as going out on a Saturday morning to your   favourite café and reading the paper, meeting your friends at the shops and so forth. We have to protect our high streets and all the shops that we all love.
I know that the noble Lord agrees with me on those matters, but we need to make sure that, in the period ahead, we are looking at ways to support our high streets. Yes, they have to evolve, but, equally, we have to make sure that they are still there, delivering for our communities. Our communities thrive only when we can meet each other, and being on a high street and visiting your favourite café or pub to meet your friends is the way it works. However, on that basis, I thank the noble Lord and his officials again for their engagement on the Bill.

Lord Duncan of Springbank: I call the noble Baroness, Lady Pinnock. I am back on form now.

Baroness Pinnock: My Lords, I give my thanks also to the Minister and his officials for the time that was offered for helpful briefings at each stage of the Bill. As the noble Lord, Lord Kennedy, said, it is a very simple Bill just to change the date of revaluations, which start in April this year but come into effect in 2023.
One issue raised during the Bill which we need to keep a watchful brief on is that, because the revaluation is starting this April, with the huge upheaval in market rents due to the pandemic it will be difficult to make assessments of rental value, which could affect the outcome of when businesses start paying in 2023. I hope the Minister can confirm that he will inform the House of any difficulties that arise from the timings of the revaluation.
The other issue discussed during the passage of the Bill, on which there was broad agreement on all sides of the House, was the strategic one about the future of the business rates system. Evidence was provided during all stages of the Bill demonstrating that retailers on the high street were at a huge disadvantage in business rates charged compared to those retailers which were online only. The differential is very large; a small shop in a small town may have a rental value at least five times that of a large online retailer in an out-of-town warehouse.
There is wide concern about the future of our high streets. The vast majority of people want to see the high street retained as a community focus, as the noble Lord, Lord Kennedy, has just described. One policy lever available to the Government to provide stimulus to the high street is a fundamental reform of the business rates system. It cannot for ever be put on the “too difficult” pile that the Government must have. Can the Minister provide the House with any timetable for the long-awaited reform of business rates? That would provide some hope to retailers on our high streets that change will come.
With those questions and comments, I look forward very much to hearing what the Minister has to say.

Lord Thurlow: My Lords, it is a privilege to be asked to make the concluding remarks from the Cross Benches as we complete the passage of this Bill. I congratulate the Minister on steering it through,  notwithstanding unsuccessful attempts—certainly from me—to divert the debate down other routes and related avenues. However, it is fair to say that we have been debating this in something of a straitjacket; those of us interested in non-domestic rates had nowhere to turn, try as we might—indeed, try as we did—to draw the failings of the NDR system to the Minister’s attention. He was perfectly within his rights to wear his benign smile throughout—and a tremendous smile it is. Why a straitjacket? Because it is a two-clause Bill, strictly focused on timing alone, to which there were only two amendments; I am aware of the frustrations of at least one other Peer who wished to table one and was unable to do so within the scope of the straitjacket. I congratulate the noble Lords, Lord Kennedy and Lord Moynihan, on successfully navigating these restrictions and tabling their well-founded amendments, both of which I was happy to support.
There are important implications in changing the dates for compiling the lists to two years’ time; I do not disagree with the principle, but I am concerned that the valuation date for determining rateable value, as we have just heard from the noble Baroness, Lady Pinnock, is within weeks. Without rehearsing the valuable and revealing contributions at earlier stages, it would be unwise to ignore the fact that retail and office markets are in crisis. Retail values are in freefall and office values are in pandemic-related confusion as businesses reassess their space occupancy needs. How on earth can the Valuation Office Agency determine rental value in these conditions? I wish it well.
There will inevitably be dramatic reductions in rateable values and a corresponding fall in local authority revenues. Unless the rate poundage is increased, when rates paid could exceed rent, that would be a lightning rod to disaster and a knife to the heart of the small business retail sector in that retail economy. Will the Chancellor continue to support the sector, or could we expect those who do not pay enough to compensate for those who pay too much? I am afraid that, regrettably, the Amazons of this world that do not pay enough will not make up the shortfall.
To conclude, I say to the Minister that I see some light in this dark place I describe. At every stage of the debate in this House, we have had reference to the fundamental review already mentioned. This is the real opportunity to introduce fairness across the landscape of NDR—sadly delayed but vital and urgent. I very much look forward to its publication and the chance for us all to consider it in the shape of a new Bill, no doubt steered by the Minister and his generous smile. I hope, for the sake of the smaller business sector, that it does not arrive too late.

Lord Greenhalgh: My Lords, this has indeed been a very narrow Bill but a very broad discussion. I thank noble Lords for the many points that have been raised during its passage, particularly in considering how we can support our town centres, especially our high streets, that give such a high quality of life to the residents of our towns and cities.
I point out to the noble Baroness, Lady Pinnock, that we are very clear that we will ensure that we keep a close eye on the impact of timings as this exercise is  carried out and that we intend to look at the future of business rates. However, that is predicated on the fundamental review of business rates taking place later this year. I also assure the noble Lord, Lord Thurlow, that, as far as is practical, local authorities’ finance will be protected via the business rates retention scheme and other measures to ensure that there should be no material impact on local authority finances.
A number of issues have been raised, and it has been an important Bill.

Lord Duncan of Springbank: A bit of a longer debate than I anticipated, but a worthy one none the less.
Bill passed.
Sitting suspended.

Arrangement of Business
 - Announcement

Lord Duncan of Springbank: My Lords, the Hybrid Sitting of the House will now resume. I ask all Members to respect social distancing.
I will call Members to speak in the order listed. During the debate on each group, I invite Members, including Members in the Chamber, to email the clerk if they wish to speak after the Minister. I will call Members to speak in the order of request. The groupings are binding. A participant who might wish to press an amendment other than the lead amendment in the group to a Division must give notice in debate or by emailing the clerk. Leave should be given to withdraw amendments, and when putting the Question, I will collect voices in the Chamber only. If a Member taking part remotely wants their voice accounted for if the Question is put, they must make this clear when speaking on the group. We will now begin.

Overseas Operations (Service Personnel and Veterans) Bill
 - Committee (1st Day)

Relevant documents: 9th Report from the Joint Committee on Human Rights, and 30th and 36th Reports from the Delegated Powers Committee.

  
Clause 1: Prosecutorial decision regarding alleged conduct during overseas operations

Amendment 1

Baroness Massey of Darwen: Moved by Baroness Massey of Darwen
1: Clause 1, page 2, line 2, leave out “5” and insert “10”Member’s explanatory statementThis amendment provides that the presumption against prosecution only applies after 10 years (instead of 5 years).

Baroness Massey of Darwen: My Lords, I will speak to Amendments 1, 2, 9 and 13 in this group. The thrust of these amendments is to provide that the   presumption against prosecution applies only after 10 years instead of five years.
First, I thank the Minister for her explanatory letter, which touches on issues raised by these amendments and, of course on the whole Bill. It was a very clear letter, and I know that she is committed to working collaboratively and will be sensitive to concerns, so I look forward to productive sessions.
My noble friend Lord Dubs and I will speak from the perspective of the Joint Committee on Human Rights, which last year carried out an inquiry on the Bill and produced a report in October. These amendments today address specific issues but it is worth saying that the committee, informed by expert opinion, had many overarching concerns about the Bill and seeks reassurances. We felt that the Bill creates problems for compatibility with the UK’s international legal obligations and simultaneously does not resolve any of the concerns that are supposedly the rationale for the Bill—that is, repeated MoD investigations.
The committee came to the conclusion that Clauses 1 to 7 could lead to impunity, violate the right to a remedy for genuine victims and undermine the UK’s international obligations to prosecute international crimes. These issues are covered in chapter 3 of the JCHR report. Of course, other noble Lords will speak on these clauses shortly. The Government argue that the Bill merely introduces a presumption against prosecution rather than a statute of limitation. However, there may be difficulties in bringing a prosecution after only five years. The prosecutor must only prosecute in exceptional circumstances; the prosecutor then needs to give “particular weight” to the adverse, or likely adverse effect on the person of conditions suffered during the demands of operations overseas. There may be a situation where a person has been previously investigated and there is no new compelling evidence. Another hurdle is that the consent of the Attorney-General is required.
The Law Society in its written evidence to the committee concluded that the presumption against prosecution creates a “quasi-statute of limitation” which is “unprecedented” in the criminal law and presents a “significant barrier to justice”. As the JCHR report points out, the MoD consultation in 2019 proposed a presumption against prosecution after 10 years; in the Bill, that has been halved to five years. That is a very short time in the circumstances of overseas armed conflict. There are many other practical reasons why a prosecution may not be possible in this time due to the protracted nature of the conflict, unlawful detention of the victim or persistent physical or mental distress. The British Red Cross has pointed out that safe access to evidence in such scenarios is difficult to obtain. Paragraph 64 of our report states:
“At a minimum the presumption against prosecution should be amended so that it does not apply to torture, war crimes, crimes against humanity or genocide.”
The Minister discusses many of these concerns in her letter and points out that most claims by service personnel are brought within the six-year date of knowledge timeframe. That does not satisfy the concerns of the JCHR, or indeed those of other organisations such as the UN Commission on Human Rights. Other amendments in this group oppose the question that  Clauses 1 to 7 stand part of the Bill. The amendments I present here are less drastic but, taken together, they would ensure that the “presumption against prosecution” does not apply until 10 years instead of five years after the day on which the alleged conduct took place. I beg to move.

Lord Dubs: My Lords, it is a pleasure to follow my noble friend Lady Massey, as a fellow member of the Joint Committee on Human Rights. I appreciate that this House has a wealth of military experience. I am humbled by the knowledge that there is such experience in the House, and I fully respect the Members who have served so gallantly and at senior levels. I cannot match that, but I did once pay a very brief visit to Afghanistan, to Camp Bastion and Kandahar, during difficult times there, and saw for myself for just a few days the conditions there during a tense period. It hardly qualifies me to be an expert, but it means that I have some strong visual impressions of what the situation there was like.
My noble friend Lady Massey has already spoken to amendments that would have the effect that the presumption against prosecution would apply after 10 years instead of five. My amendment would remove the presumption against prosecution altogether, as recommended by the recent report of the Joint Committee on Human Rights, although I am bound to say that many of the arguments used in relation to five or 10 years would also apply to removing the presumption altogether.
The Service Prosecuting Authority has been in charge of the prosecution process, and there is no suggestion of excessive or unjustified prosecutions. Indeed, there are already some safeguards. The Service Prosecuting Authority would bring a prosecution only, first, where there was sufficient evidence that the accused committed the offence and, secondly, where the prosecution was in the public interest. These seem to be pretty good safeguards and would prevent vexatious or unfounded prosecutions.
As they stand, Clauses 1 to 7 of the Bill would contravene the United Kingdom’s international obligations under international humanitarian law, specifically the law of armed conflict. They could also contravene the United Nations Convention against Torture. There would be the risk of prosecution of our armed forces under the laws of another state and, above all, the risk of prosecution under the terms of the International Criminal Court. That court has the jurisdiction to investigate and prosecute war crimes, crimes against humanity and genocide perpetrated by UK personnel if the UK is “unwilling or unable” to do so. It would be hazardous in the extreme to pass a Bill with measures in it that would run the risk of our service men and women being prosecuted by the International Criminal Court.
The reputation of our Armed Forces has traditionally been second to none. I am concerned that, all over the world, people are looking at this legislation and wondering whether there is not some constraint on the reputation of our Armed Forces or, indeed, whether that reputation might not suffer through this legislation. I very much hope that, when we come to it, we shall be able to amend the Bill so as to strengthen the position of our  Armed Forces, either by getting rid of Clauses 1 to 7 altogether or at least increasing the time period from five to 10 years. I am happy to be a member of the Joint Committee on Human Rights, and our report has set a very good basis for the debate that is to follow.

Lord Mackay of Clashfern: My Lords, I wish to discuss only the question of whether it should be five or 10 years. It has to be remembered that this is in relation to a prosecution, so the only outcome of this is a criminal sanction. It does not of itself do any good to anyone else but, of course, gives a feeling of justice when the sanction is in accordance with what the people who have complained have suffered. Against this, it has to be remembered that the strain that comes with waiting under a dark shadow of a possible prosecution is quite considerable.
I have two experiences that I remember very well in relation to the feeling of strain associated with the possibility of a prosecution. The first was shortly after I became Lord Chancellor, when there was a huge allegation of fraud in relation to a company group. The number of people in the prosecution was quite large. The learned judge who presided decided that the case was too big to be dealt with by a single jury, and therefore decided that a good part of the case should be postponed until the first part had been tried. I received a considerable number of complaints that the pressure of waiting—it was not five years, but it was quite a long time—was sufficient to make it very difficult for people who were ultimately found innocent. The delay is something that has to be taken into account as an addition to the strain on the people involved.
The other, rather different example that I had in mind was that, at about the same time, I received a very pathetic letter from a circuit judge who had broken the speed limit and was waiting for the outcome. He wrote to me to say that, for the first time in his life, he realised what a strain it was to be awaiting the result of a prosecution.
I mention those two examples to show that the wait is not negative; it is not completely without effect, and that has to be taken into account in relation to the strains that are put on our service men and women serving abroad. They are subject to many strains already. This would be an additional strain, so that between five and 10 years there is a substantial difference.
A limit or risk involved for the service personnel who encounter this kind of experience is that they are likely to be far from the scene or the subject matter of the projected prosecution. The longer, and the further, one is away from it, the more difficult it is to have a realistic conception of what is involved. It seems a matter of judgment whether five years or 10 years should be the constraint. At the moment, I am content to accept what the Government have suggested as a matter of judgment in the question before us.

Lord Thomas of Gresford: My Lords, it is always a pleasure to follow the noble and learned Lord, Lord Mackay. I hope that his concern about  delay will be addressed in Amendment 4, to which I commend him, when we come to it.
I was talking to a cousin of mine at the weekend, a retired Army major, about his evacuation as a boy to Devon in the spring of 1944. The fields were crammed with soldiers, he said, until, on one day, they all vanished. I have my own memories of the Royal Welch Fusiliers exercising in the fields around my home before departing as suddenly, some to lose their lives on the beaches of Normandy. We owe the military an enormous debt. In this House, there will be few who did not lose close family members in the conflicts of the 20th century for the defence of our country and for the freedom of Europe and of Asia.
Today, I think there is great sensitivity for the welfare of our Armed Forces and their families, when we have committed our young men to risk their lives in overseas operations when the lifeblood of our country is not at risk at all—where the overseas operations have been for contestable political reasons and no longer, even as in our dubious past, for conquest and empire.
The military depends on discipline and the obeying of lawful orders within a framework of law. When we come later in the year to debate the new Armed Forces Bill, it may surprise many to discover that it is essentially concerned with discipline and military justice. The reason is that it is discipline and the law which enforces it which bind the Armed Forces into an effective arm of the state.
In my professional career, I never prosecuted at court martial. I was always on the defence side, in one instance for an officer but mainly for ordinary soldiers. The stated policy for this Bill, as set out in the Explanatory Notes, is to protect sailors, soldiers and airmen against historic investigations and prosecutions deriving from them. I do not believe that a presumption against prosecution is a protection; I believe that it weakens the bonds of discipline.
What the progenitors of this policy have failed to recognise are the protections which already exist. A soldier is trained to kill and to maim and given the means of so doing. His protection is that he does not commit a criminal offence in the use of violence if he acts in accordance with lawful orders—the lawful commands of his superiors. If he acts without or against those orders, by raping a woman or by shooting a defenceless civilian or a wounded or captured enemy, it surely must be public policy that, if proved, he is to be punished for it. He is also criminally and personally responsible, even if he is acting in obeying an unlawful order; for example, to torture a prisoner for information. But even in that case there is a system of justice, which we have developed over centuries, which is specifically designed to protect him.
He will know that the decision to prosecute will rest in the hands of an independent Director of Service Prosecutions. All the successive holders of that office will have to have demonstrated—to use the words of the Explanatory Notes—
“proper regard to the challenging context”
and the mitigating factors specified in the Bill. It is the DSP who is charged with considering the service interest and the public interest.
Further, a defendant soldier will not appear before the ordinary civilian jury, far removed from the stresses and strains of the battlefield, but before a panel of responsible and experienced officers and warrant officers who will have personal knowledge of the exigencies of the service and will take those matters into account. The soldiers who were engaged in the torture of Baha Mousa and those detained with him were acting under the unlawful orders of the corporal in charge. He pleaded guilty to a war crime, but they were all acquitted of murder or neglect of duty. A civil jury might have taken a different view.
Of course, the Government say that, if there is evidence of serious criminal acts, the presumption does not prevent a prosecution entirely, nor does the requirement for the consent of the Attorney-General—I shall say more on those topics later in this Committee. So what is the presumption and the seriousness of a crime which will rebut it? Is it a presumption against prosecution for stealing the mess funds in Iraq 10 years ago or, as in the current trial at Bulford, for claiming school fees as legitimate expenses? Of course not. If, as the former Judge Advocate-General, Jeff Blackett, has publicly stated, there have been only eight trials of serious crime in relation to operations in Afghanistan and Iraq, in which of these would this presumption have operated to prevent a prosecution? Would it have been in the case of Sergeant Blackman, who only subsequent to his court marital admitted on appeal having deliberately shot under stress a captured and wounded man? Would it have prevented the prosecution of the eight soldiers and three officers in the Baha Mousa case? If it would, there are a number of consequences.
First, the use of the presumption would be a violation of the spirit of the laws of this country which maintain coherence and discipline in our Armed Forces. There is nothing in the statute law since 1661 or in the Articles of War which followed which talks about a presumption against prosecution. The law and the values it represents protect our military, and those who speak of the dangers of “lawfare” know not of what they speak.
Secondly, it would violate the laws of war which exist internationally to temper the brutality and the devastation which are the inevitable consequences of armed conflict.
Thirdly, it would invite the investigation and punishment of British soldiers by the International Criminal Court. That court has, by treaty, investigatory powers and jurisdiction for criminal offences committed by the British Armed Forces. I suspect that its prosecutors are eager to demonstrate that the values and standards which are the core reason for the court’s existence are not designed simply for Slavic generals or African despots but are universal. Picture Parliament Square if a British squaddie or officer stands trial in The Hague. This Prime Minister would undoubtedly break the treaty.
Fourthly, it inhibits investigations. That is the barely concealed motivation for the triple lock in the Bill. I challenge the Minister to deny it. I shall discuss the difficulties of investigating overseas actions later but, with limited resources, why would an investigator  undertake an expensive and time-consuming investigation if his report had to mount the hurdles of a presumption against acting on his report by the prosecutors and the fiat of the Attorney-General?
Fifthly—and we shall discuss this in the context of derogation from the Human Rights Act—it is a signal to an enemy or an insurgent that they need show no restraint in torturing or killing captured British soldiers in precisely the same way. Show me the Minister of Defence who is prepared to dispatch troops who are exposed, by the very legislation that we are considering today, to retaliatory risks such as these.

Lord Stirrup: My Lords, I have some significant concerns over the Bill, but I confess that I am puzzled by Amendment 1 and those other amendments directly associated with it.
A proposal to extend the timescale for the application of the provisions within Part 1 of the Bill from five years to 10 years must surely be based on some perceived shortcoming associated with the lesser period that would be remedied by the substitution of the longer one, but what is that relative shortcoming? I start by accepting the Government’s assertion that there is no significant legal watershed involved in the proposed limitation. After that period, prosecutors will need to take account of the various considerations set out in the Bill but, as was generally conceded at Second Reading, a competent prosecutor would take account of those considerations even if the case arose before the expiry of the five-year period.
If this be so, arguments that defendants would try to defeat investigations by delaying them beyond the five-year period, or that those who had been rendered physically or mentally unable to begin such proceedings until after the expiry of that period would be denied justice, must surely rest on the presumption that the prosecuting authority is incompetent or biased. In that case, no proceedings would be safe, whenever initiated.
Similarly, the argument that the Attorney-General would act politically—for which I read “improperly”—regarding his or her responsibilities calls into question an important part of our entire legal structure. That would raise serious constitutional issues that went well beyond the scope of this Bill. It has also been suggested that it might be difficult to gather adequate evidence within a five-year period, particularly if the relevant conflict was still ongoing. That may well be true, but it might also be difficult to gather satisfactory evidence after the passage of many years. There is a need for balance here.
All this raises the question of whether there is any substantive benefit to be gained by defining a time period at all. The Government say that there is value in codifying the requirement in the way that they propose. If that is the case, why not codify it so that it applies to all potential prosecutions, no matter what timescale is involved? However, that is not what this amendment seeks to achieve, and it is to this amendment that I speak. Assuming that there must be a timescale, a five-year period is a reasonable span to choose in preference to any other. The Government’s position appears to be that one of the main purposes of the Bill is to reassure serving personnel that they will have a  significantly reduced risk of being left exposed to prolonged, repeated, and mischievous accusations. If so, a period of 10 years would go a long way towards defeating that purpose. Although 10 years may not be for ever, it will seem like it to those who undergo such risks. I very much doubt that they would take any real comfort from such a provision.
Amendment 1 may be a way of neutering Part 1 to such an extent as to render it largely meaningless. If so, surely the various questions on clause stand part in the group are a better way of achieving this, although that would be to reject a Bill that has already been passed by the other place. Some might in this instance wish that we could, but they must consider whether we should.

Lord Faulks: My Lords, it is a pleasure to follow the noble and gallant Lord, Lord Stirrup. Part 1 of the Bill creates a presumption against prosecution after five years, and factors are spelled out in the Bill which require consideration before any later prosecution. I would have thought that those factors would in any event form part of any decision on whether to prosecute, but I have no difficulty with them being put on the face of the Bill. What is important to stress is that this part of the Bill does not give impunity to our Armed Forces, nor does it explicitly deal with the real problem that has faced them, particularly after operations in Iraq and Afghanistan—namely, investigations and reinvestigations many years after the events.
This group seeks, among other things, to remove Part 1 from the Bill entirely, whereas the amendments in groups 2 and 3 at least attempt to amend and not wreck this part of the Bill. The reasons given for this drastic approach are the effect on our international reputation and, in particular, the risk that the International Criminal Court will or might become involved in circumstances where prosecutions would normally be left to our authorities. I am not at all convinced about the reality of this risk. Is it really suggested that if genocide, crimes against humanity or war crimes, as defined by Articles 6, 7 and 8 of the Rome statute, were discovered five years after the original offences, they would not result in a prosecution? Nothing in this Bill would prevent one.
I hope that noble Lords who seek the removal of this part of the Bill have read the evidence that Major Bob Campbell gave to the Public Bill Committee in the House of Commons. He said of the Bill that the principle of attempting to improve the lot of veterans and service personnel was welcomed, and that
“if the Bill were to be squashed it would send a very depressing message to the veterans community—probably one that has been felt quite harshly by the Northern Ireland veterans—that we are not important enough to get any type of assistance when facing legal assault.”
Major Bob Campbell was investigated and reinvestigated 11 times in relation to the same incident over 17 years. His view was that if the Bill had been enforced, his torment would at least have ended in 2009. Whether or not he is right about that, it is important to pay attention to his answers. When asked about the danger of the ICC becoming involved, he told the Committee  that he had been repeatedly informed that if IHAT—which noble Lords will know about—was in anyway interfered with, the International Criminal Court would “swoop in” and
“clamp us in leg irons and we would all be off to the Hague.”
About ICC involvement, Major Campbell said:
“I decided to test that theory, and I wrote to the chief prosecutor of the ICC, Ms Bensouda, asking in exasperation whether I, SO71 and SO72 could surrender ourselves to the ICC rather than go through several more appalling years at the hands of the Ministry of Defence. Ms Bensouda responded that our allegation does not fall within her remit, because her job is not to prosecute individual soldiers; her job is to prosecute commanders and policy makers for the most grave crimes. In her orbit, manslaughter, which is what I was accused of, is not a war crime. It is a domestic crime—a regular crime, as opposed to what she would normally deal with. I reported that rejection to the Ministry of Defence, which continued to repeat that the ICC would fall in.
The second point I would make is what would be so terrible about the ICC being involved? We kept getting told that the ICC has a bit of scrutiny over IHAT and is keeping a very close eye on it. Personally, I do not have a problem with that. Like I said, the ICC was not going to ruin our careers, the ICC was not going to harass our families, and the ICC was not going to go and bully soldiers who had left the Army for a witness statement—not even a suspect’s. The ICC would conduct itself professionally, and it would have no incentive—no financial incentive—to drag things out for years, like Red Snapper, which provided most of the detectives to IHAT, did. Finally, the ICC would probably not use the investigative technique that IHAT used, which was to pay Phil Shiner’s gofer to be the go-between between them and witnesses because IHAT was too scared to go to Iraq.”
He continued:
“So regarding the whole spectre of the ICC, first, I do not find it remotely as scary as people make it out to be and, secondly, it is completely false, because I attempted, with my two soldiers, to surrender ourselves in order to spare us another several years of the MOD fannying about, and the offer was refused. So to answer your question, I do not see that as an issue at all.
What I would say, though, is that I think I understand why the Government would be reluctant for the ICC to be involved, because the scrutiny would not be on Tommy Atkins; the scrutiny would be on General Atkins and Minister Atkins.”—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 6/10/20; cols. 27-28.]
This part of the Bill is not a panacea. It does not of itself prevent investigations or reinvestigations, but it is something which will be welcomed by our own forces. I respectfully suggest that the spectre of the ICC as a reason for wrecking this part of the Bill is unsound. I invite noble Lords who have quite rightly emphasised their respect for our Armed Forces to look soldiers like Major Bob Campbell in the eye and say to them that these provisions are entirely inappropriate and would damage our international reputation. I strongly oppose all these amendments.

Lord Morris of Aberavon: My Lords, I support Amendments 1 and 2. As I did not take part at Second Reading, I must resist the temptation to cover a whole range of subjects in my contribution to this debate.
As an old Defence Minister, and, indeed, an old soldier who served in Germany as an infantry subaltern and was involved in courts martial there, I broadly welcome the aims of the Bill to introduce a measure of protection against unfounded claims against military personnel, some of which go back many years. I deprecate the cottage industry in the growth of claims.
Let me say immediately that when there is wrongdoing, no person is above the law. Torture is a typical example where we should never propose exemption. I have argued before at the annual conferences of the Inter-Parliamentary Union in Cape Town and, more recently, in St Petersburg to persuade all countries to accept the need to ensure that there is no exemption for this offence.
As a law officer, I played a very small part in encouraging the Foreign and Commonwealth Office under Robin Cook to create the International Criminal Court. As John Healey MP said in the other place on Third Reading of the Bill, the risks of
“British troops being dragged before”—[Official Report, Commons, 3/11/20; col. 277.]
the ICC are there. There may be an argument about this, but that is what he said and we should always bear it in mind. Perhaps the Minister could give an assurance on that very point of what—if any—the dangers are of going before the ICC.
The wise words of Professor Michael Clarke, the former director-general of the Royal United Services Institute, on the dangers of an idea gaining
“international traction that the UK operates a ‘quasi-statute of limitations’”,
and hence might be in danger of being indicted before the International Criminal Court, should always be borne in mind. They need rebuttal, and they need clarification.
When the Government launched their consultation on the changes to the legal protection for our Armed Forces serving overseas, the consultation included proposals to create a statutory presumption for alleged criminal offences which occurred more than 10 years ago. I repeat: 10 years was the issue that went out for consultation.
The Bill is a major departure from the norms of our international obligations
“under international humanitarian law … international human rights law and international criminal law.”
These are not my words; they are the words of Parliament’s Joint Committee on Human Rights. They are words that we should bear in mind and rebut if it is possible to do so.
That is the background, and hence it is a basic requirement that any provisions in the Bill need thorough justification. Therefore, I support Amendments 1 and 2 to change the presumption against prosecution from five to 10 years. My question, very simply, is: what is the Government’s justification for the change from 10 years in the consultation document to five years? I would like an answer before the end of this debate.

Baroness Jones of Moulsecoomb: My Lords, before I start my remarks about the Bill, I would like to say that nothing I say over the next few days in any way impugns the integrity of the Minister. I have every respect for her, but I think that the Bill is a terrible piece of legislation—worse than terrible. It is actually quite shocking. It is the international version of the “spy cops” Bill, which granted broad legal immunity to state agents who commit criminal acts. How can that be right?
It is one of those Bills that I think is so bad that we need to scrap it entirely. That is why I am joining the noble Lord, Lord Dubs, and the noble Baronesses, Lady Massey and Lady Smith of Newnham, to oppose the question that Clauses 1 to 7 stand part of the Bill. If a “delete-all” amendment were in order, I would do that instead. I hope that we can build an alliance to oppose the Bill’s Third Reading.
It struck me listening to noble Lords who have spoken already that the support for the Bill is actually based on fake news. The Office of the Prosecutor of the International Criminal Court has written to our Joint Committee on Human Rights, chaired by Harriet Harman. In a letter, she says that the number of vexatious claims has been “exaggerated”—by our Government, obviously—to justify the proposed legislation. We do not have a whole heap of vexatious, baseless claims, which is what the Government seem to be suggesting.
The Bill clashes with the whole point of our justice system. I know that there are noble Lords in this Chamber who know a lot more about the law than I do, and I am sure they know that that is true. The whole point of our justice system is that the guilty are found guilty and the innocent are found innocent—that is obviously what we have to do. The noble and learned Lord, Lord Mackay, mentioned the strain of all these vexatious claims, but in fact they do not exist, so the argument for the Bill is extremely weak.
I consulted two ex-generals and an ex-admiral of my acquaintance about the Bill, and they all had severe qualms. They all felt that this could backfire quite seriously on our service personnel and that it would make things worse. The noble Lord, Lord Thomas of Gresford, demolished the argument for the Bill, but he said as well that service personnel could be brought to the ICC, which would be much worse than being dealt with here.
The Government are now introducing, or trying to introduce, a messy exception for military personnel from the law that the innocent should be found innocent and the guilty found guilty. We do not care if they were guilty as long as their offending happened five years ago. That is absolutely appalling—we cannot say that about any crimes. It is another attempt by the Government to put our often brutal military history in the past, suppressing those who speak the truth and insisting that only patriotic narratives are allowed to prevail. The noble and learned Lord, Lord Morris of Aberavon, said that no person should be above the law. The Government do not seem to agree with that anymore—and this is from the party of law and order. Have they sort of slipped those bonds of law and order? Your Lordships’ House must not be complicit in this denial of justice and rewriting of history. We must do whatever we can to scrap this Bill.

Baroness Gardner of Parkes: My Lords, my father-in-law fought in the desert with the Australian infantry, as part of the Commonwealth forces, during the Second World War. He spoke of some of the horrors he saw, and also of the support that he and his fellow servicemen and their families received on their  return home, and over the years, from the Australian charity Legacy, where he himself did a great deal to help widows and orphans of those who had given their lives.
I know that much has changed since the Second World War, I hope for the better, in the treatment of service men and women, with recognition of post-traumatic stress disorder and the examination of alleged crimes and, where appropriate, prosecutions. However, when we ask our service men and women to put their lives on the line on a daily basis for the good of their country, we need to give them certainty as to when they can look forward to the future rather than back at the past.
I speak in favour of retaining the five-year limitation on bringing a prosecution, with the exceptions envisaged by this Bill, rather than the longer 10-year limitation being proposed by these amendments. Over time, memories and recall fade; it is only fair, for the sake of all involved, that any investigation and, if appropriate, prosecution, is brought when these memories are still clear and accurate and evidence is available. We should not forget that, even if an investigation does not result in a prosecution, it can take its toll on the mental health of the people involved and their families. To prolong this for up to 10 years after an event is just too long.
The Minister has previously said that this is not about reducing access to justice. I paraphrase her comments and support them. This is about giving certainty and finality and preventing injustice when, due to the amount of time that had elapsed, adjudicating would otherwise be on unreliable and incomplete evidence. Although my name is on the list, I do not propose to speak again later in this debate.

Baroness Chakrabarti: My Lords, I am grateful for the opportunity to address this fundamental part of the debate on Part 1 of the Bill. Before I begin, I want to say that, if I do not impugn the motives of Members of your Lordships’ House, I hope that that will be a reciprocal courtesy. I shall not be asking any noble Lords, let alone Ministers or their noble friends on their Benches, to look any victims of war in the eye. I would happily look Major Bob Campbell, or any other brave serviceperson, in the eye, in trying to address the problems that the Government say they are trying to address through this Bill, and in making the best analysis and argument that I can about this very important legislation. The rule of law is too precious for us to be impugning each other’s motives, patriotism, or support for either service personnel or the victims of war. It is not service personnel who make sometimes ill-judged decisions to go to war, and it is not Ministers and politicians who put themselves in harm’s way. I hope that we can continue with a slightly better-tempered debate than to accuse some of us, by implication, of being somehow unsupportive of ordinary servicemen and women.
This is about the rule of law, which is supposed to apply to everyone—although, granted, some people are dealing with particular difficulties. The difficulty that the Government say they are addressing here is that of servicepeople who have been put into sometimes  unlawful and certainly very controversial and difficult conflict situations, and then been subject to repeat, lengthy and shoddy investigations, which have caused great anxiety to them and little resolution for the public or, indeed, alleged victims overseas. If that is the problem to be addressed, surely the solution would be to address shoddy, lengthy and repeated investigations, rather than to create a “triple lock” on prosecutions.
It would be better to address the actual problem being suggested to improve investigations, making them more independent, swifter and more robust, so that everyone has confidence in them. The beauty of attacking the actual problem, as posited by the Government, is that it would serve the rule of law rather than undermine it, which would be completely uncontroversial. No victim of an alleged war crime could complain about swifter, more independent and more robust investigations. Improving the investigation system would also, I have no doubt, give greater comfort to the military. Not to do that and, instead, to do what Part 1 of this Bill does—to create shields, locks and triple locks on prosecutions—would quite obviously be in contravention of the rule of law that our brave service men and women seek to serve, not just domestically but all over the world, and perhaps more so, I fear, in the context of modern warfare. That will often involve covert, secret operations that the wider public might not know about for a long time, and alleged crimes may not come to light for a long time. As has been said by other noble Lords, witnesses or, indeed, victims may well be incarcerated for much longer than the five years, or even the 10 years posited in the draft Bill and in amendments. There are people still in Guantanamo to this day. I am sad to say that we are heading for a very grim anniversary in the autumn, of 20 years since the atrocity of 9/11. Part 1 seems completely the wrong way to address the problem that the Government themselves have posited.
I turn to the observations made by noble and noble and learned Lords that, whether it is five years or 10 years, it is a long period to be worried about the risk of prosecution. That, of course, is true of anyone. If five years is an adequate period to justify the first part of a triple lock on prosecuting grave crimes, we would have a presumptive statute of limitations such as that for domestic crimes, but we do not. We believe that that would be anathema to justice because serious crimes such as unlawful killing and so on should not be subject to a statute of limitations, even a presumptive one. It is not considered good enough for British justice here at home, but it is being suggested that such a statute of limitations is good enough overseas.
Of course this sets a dangerous precedent. I would be grateful to hear the supporters of Part 1 say whether they would honestly be happy with a replica of this legislation, in particular this part, to be enacted in other countries around the world—including in those jurisdictions with which we have been at war or with which we have difficult and potentially hostile relations at the moment. Would we be happy with a replica of this being provided in countries that we are worried about in relation to human rights abuses?
The rule of law is about where we try to set a standard across the world, and our Armed Forces are all about a pride in setting that standard. On the  argument that there is nothing to fear from the ICC, it is quite right that there should be nothing or little to fear from it at the moment because of the law in this jurisdiction as it stands and because of the respect in which it is held worldwide. But if we continue to chip away at it by limiting its reach through the creation of a triple lock, I fear that people will be subject to greater ICC interference. It is all very well for noble Lords to say, “Nothing to hide, nothing to fear; let the ICC do its worst,” but I do not believe that that would be the argument in reality if that outcome were to present itself.
I urge noble Lords to think again about Part 1, and urge the Government to consider making investigations swifter and more robust and not to keep chipping away at the law which is supposed to apply to all, with support and respect for the circumstances of police officers, prison personnel, doctors and teachers—all sorts of people find themselves the subject of false allegations through no fault of their own because of the nature of their work. Members of the Armed Forces have a special difficulty, but that should be tackled at the investigations end, where the problem lies, not by creating a presumption against prosecution after what is a very short period in relation to the commission of alleged grave crimes overseas.

Baroness Ritchie of Downpatrick: My Lords, it is a pleasure to follow the noble Baroness, Lady Chakrabarti. Like she does, I believe that Part 1 of the Bill should be cancelled because it creates a lock on prosecutions. I therefore support the amendments and the proposals to cancel Clauses 1 to 7.
Coming from Northern Ireland, I have denounced on every occasion the mayhem and the murder of members of the Armed Forces who were killed in the most indiscriminate way. They were human beings and they had families, and the way that they were treated by members of the paramilitary organisations was wrong, unacceptable and totally unwarranted, and did not contribute one iota to a political settlement. I want to set that out very clearly. But, like the Equality and Human Rights Commission does, I believe that the provisions in these clauses as they stand do not fulfil the requirements of honouring human rights requirements.
I honestly believe that none of us should be above the law, so I support the position taken by the noble Baronesses, Lady Massey of Darwen, Lady Smith of Newnham, Lady Jones of Moulsecoomb, and the noble Lord, Lord Dubs, who have given notice of their intention to oppose Clauses 1 to 7 standing part of the Bill. By removing these clauses, we would take away the presumption against prosecution. At the very least, I support Amendments 1 to 9 and 13. They would help redress the balance currently in the Bill, which favours the accused, in order to ensure fairness and equality before the law for both claimants and defendants.
Support for these amendments, which, if taken together, would ensure that a presumption against prosecution does not apply until 10 years, instead of five years, after the day on which the alleged misconduct  took place. The Bill currently creates a statutory presumption against the prosecution of current or former military personnel if more than five years have passed since the alleged offence took place, stating that such a prosecution would be exceptional. For me and for those working in the field of human rights, the proposed presumption against prosecution amounts, in effect, to a statute of limitations.
I am only too well aware of the letter sent by the Minister in which she discounts that proposition, but I am afraid I have to differ. As drafted, the Bill could be construed as being applicable to torture and ill-treatment as well as to the principles of international crimes, including genocide, war crimes and crimes against humanity. When such rights are engaged, a statute of limitations is contrary to the international human rights framework and customary international law. The proposed presumption against prosecution would also contravene the procedural obligations of the UK under Articles 2 and 3 of the European Convention on Human Rights to investigate the lawfulness of actions involving the use of lethal force, alleged torture or ill-treatment by service personnel in overseas operations.
In summary, opposing the questions that Clauses 1 to 7 should stand part of the Bill will improve significantly its adherence to the principles of fairness and equality before the law because it would remove a statutory presumption against prosecution. If this does not succeed, Amendments 1, 2, 9 and 13 would alter the presumption against prosecution so that it would apply only after 10 years after the date of the alleged conduct. That would go some way to reducing the negative impact on access to remedy and redress for victims by allowing more time for evidence to come to light and proceedings to be initiated.
I hope that the Minister will be able to provide us with some answers or, shall we say, mitigations that will go some way to dealing with Part 1 and ensuring that human rights, fairness and equality are honoured and respected.

Lord Lancaster of Kimbolton: My Lords, it is a pleasure to follow the noble Baroness. I start by declaring my interest as a member of the Army Reserve and, indeed, my morning job as the deputy director of joint warfare at UK Strategic Command. Listening to this debate, I have been struck by how clear the point of law seems to be, particularly for noble and learned Lords, from the comfort and security of this Chamber or, perhaps, one’s home. My mind turns to members of the Royal Anglian Regiment who are currently on patrol in Mali, fighting against al-Shabaab and trying to defend what we believe in. I have no doubt that they are equally clear about what is right and wrong.
It always amazes me how members of our Armed Forces, despite the circumstances in which they often find themselves, have applied what is right and wrong under the most difficult circumstances and their judgment is normally sound. However, they will be less interested in the detailed points of law than in knowing that their relationship with Parliament is one of trust and support. As I listened to this debate, I am genuinely concerned that we are beginning not to see the wood for the trees in relation to why we are bringing the Bill forward. It was done partly at the request of our Armed Forces  who, in recent years, after a series of vexatious claims, simply want to know that Parliament and the Government have their back.
I have the utmost respect for noble Lords and noble Baronesses who have brought forward these amendments, which in the main come from a genuine concern that the Bill may disrespect international law or organisations such as the ICC. I understand, but I am concerned. Rather like the noble and gallant Lord, Lord Stirrup, I do not understand these early amendments, because they seem to go to the heart of what we are seeking to achieve, and the principles of what the Bill is for, in the triple lock. I find that frustrating, because nothing in the Bill ultimately will prevent, in the case of new evidence, a serviceman being brought to justice. No one is trying to say that members of our Armed Forces should be above the law. That is not the purpose of the Bill.
Some noble Lords simply do not like the Bill and want it gone. To be fair to the noble Baroness, Lady Jones, she was clear in her comments and I absolutely respect her. In many ways, it reminds me of exactly why I joined the military 32 years ago—to ensure that she has the right to stand there and make these points. What I find frustrating, though, is that when some seem to be seeking, effectively, to wreck the Bill through these amendments, in the same breath we hear platitudes about the brave members of our Armed Forces. We should be supporting them.
I, for one, am not saying that the Bill is perfect; it is anything but. I have proposed my own amendment to try to improve the Bill. Later this afternoon, I will be commenting on some amendments that try sensibly to improve the Bill. However, I do not want to lose the purpose of what we are doing, because your Lordships’ House will not do itself any favours with members of our Armed Forces if we seek to undermine the general direction of the Bill and what it aims to do.
I turn in particular to the first set of amendments and the movement from five years to 10 years. I have concerns about that, not least because, in response to the public consultation, there were concerns about a 10-year timeframe. That is a long time and, particularly in the heat of battle, memories can fade and evidence can deteriorate. Given that we are seeking to create certainty and reassurance, a period of five years better achieves that objective. Ultimately, any timeframe will probably be viewed as arbitrary.
Perhaps to reassure myself, I considered how two of the most recent unfortunate cases would be impacted. The trial following the tragic death of Baha Mousa, the Iraqi man who died in British custody in September 2003, was in 2006, just three years later. Equally, I was involved as a Minister in the case of Sergeant Blackman when it came up again two or three years ago. It involved the killing of a Taliban prisoner in 2011 and the trial took place in 2013, well within a relatively short period. In both circumstances, the evidence came out after the event.
Ultimately, nothing changes if new evidence comes to light, which is why the amendment moving the timescale from five to 10 years is unnecessary. Indeed, it goes to the heart of what the Bill is trying to achieve. We should not be treating members of our Armed  Forces like fools. They are anything but fools. If we are seeking to put the Bill through Parliament in an effort to support them, let us do just that. Of course there are areas in which the Bill can be improved, but I am not sure that these amendments do that.

Lord Berkeley of Knighton: My Lords, it is a pleasure to follow the well-made points made by the noble Lord, Lord Lancaster of Kimbolton, and I certainly take them on board. I am going to speak briefly to the opening amendments and the general feel of the Bill. I do so having also taken on board the wise words of my noble and gallant friend Lord Stirrup. I look forward to hearing more about his reservations on the Bill.
I was enormously impressed by what we heard from the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Chakrabarti. Their words are, I contend, in the interests of our armed services, given that clarity on the fairness that these matters require helps to give confidence that proceedings involving service personnel are thorough. We desire them to be thorough and universally admired. If they are, that only helps our service personnel. I look forward to hearing other speakers and the reply of the Minister to those concerns.
I turn to a slightly wider landscape. We hear virtually every week in your Lordships’ House about disturbing events in, for example, Myanmar, Hong Kong and China, as well as, even nearer to home, the recent case of the American woman claiming diplomatic immunity after her tragic road crash. There were the cases of the assassination of Mr Khashoggi, the poisonings in Salisbury, Sergei Magnitsky and the current detention of Mr Navalny. The point that I am making is that in all those cases it takes time for the facts to emerge, even to be dug up. The case of Baha Mousa could easily have taken six years, but I salute the efforts that were made. I am afraid that the facts often take longer than five years to emerge. Still more importantly, I contend that our remonstrations about these cases is all the stronger if the way in which we deal with our own employees is as beyond reproach as possible. That is why I worry that five years is too short and why I have real concerns over the presumptions against prosecutions contained in the Bill.
Finally, I stress that I accept that the terrible things that happen in the heat of battle are quite different from the premeditated use of torture. It is that matter which particularly concerns me and to which I shall return when we reach Amendment 14.

Baroness Smith of Newnham: My Lords, it is conventional to say what a pleasure it is to speak after whichever noble Lord has preceded one. On this occasion, it genuinely is a pleasure to speak after the noble Lord, Lord Berkeley of Knighton, because I tended to agree with most of what he said. I am winding up on this group of amendments very much from the same place as when I was winding up at the end of Second Reading from the Liberal Democrat Benches.
On this occasion, my name is attached to some of the amendments, but I will none the less restate, for the avoidance of any doubt before I get into their  substance, that I am not proposing that we throw out the Bill. The amendments to which my name is attached are intended for debate in Committee. I support the amendment to change the timescale from five to 10 years, but I am not necessarily at the point of suggesting that, when we get to Report and voting, certain clauses should not stand part of the Bill. Nor am I going to support, much to her disappointment, the noble Baroness, Lady Jones of Moulsecoomb, and say that I shall vote against the whole Bill at Third Reading. That, to the best of my knowledge, is not the Liberal Democrat party line. We have not said that we will vote against the whole Bill. Rather, there are aspects of the Bill which we and many other noble Lords right across the Chamber argued at Second Reading were flawed and which need to be addressed in amendments in Committee that presumably will be voted on on Report.
Some of the ideas for today’s amendments are therefore partly probing. If, for example, the amendment in the name of my noble friend Lord Thomas of Gresford were passed on Report, perhaps Clause 2 would be a rather more acceptable clause. However, as the Bill stands at the moment, it is not fit for purpose. The noble Lord, Lord Lancaster of Kimbolton, seemed to suggest that it was—sorry, I was about to use unparliamentary language, and I do not think that he used unparliamentary language, so I will try to find an appropriate way of saying it. He seemed to suggest that there was something disingenuous about somebody disagreeing with the Bill but saying how much they support our Armed Forces.
I do not think that is the case. I strongly support our Armed Forces and I am absolutely committed to the stated aim of this legislation. The stated aim of Part 1, as I understand it, is to stop vexatious claims. If the Minister, in responding to this or any other group of amendments linked to Part 1, can explain to me how presumptions against prosecution actually stop vexatious investigations, I would be very pleased to hear it. At the moment, however, that is not clear in the Bill, so we have a real problem. I strongly agree with those I have heard speaking from the Government Benches about the importance of trying to stop vexatious claims, but the way to do that is to deal with solicitors and others through their own codes and not necessarily through this legislation.
As the noble Baroness, Lady Ritchie of Downpatrick, and the noble Lord, Lord Berkeley of Knighton, put it very clearly, there may well be cases where, if investigations are going on and prosecutions need to be brought, 10 years might be more appropriate than five years. Therefore, I reiterate the question asked by the noble and learned Lord, Lord Morris of Aberavon, and ask the Minister why the Government have opted for five years rather than 10; is there clear evidence that that is an appropriate length of time, rather than a period that has been plucked out of the air? Absent that, 10 years seems to be more appropriate, if there is to be some presumption against prosecution.
In many ways, the nature of legislation and the points of clauses in Bills mean that the debate does not necessarily start quite where we would want it to. There are all sorts of amendments that could help the  Bill and lead to better legislation. I am certainly not saying that I will necessarily oppose all clauses in Part 1 standing part, but, at this stage, I would like the Government to give us more information about why they think that certain things are appropriate.
After Second Reading, I for one came away with a strong sense that the stated aims of the Bill and what is in Part 1 do not hold together very well. As the noble Baroness, Lady Chakrabarti, and my noble friend Lord Thomas of Gresford both implied, there is real concern about how, if we impose presumptions against prosecution that include genocide, torture and other war crimes, our service men and women would feel if similar legislation were laid in other countries and they could not bring cases.

Lord Falconer of Thoroton: The debate has been very impressive. I take this opportunity to make special mention of the noble and learned Lord, Lord Morris of Aberavon. I was Solicitor-General when he was the Attorney-General. As he pointed out, he served in the Armed Forces and was an incredibly effective Attorney-General, and he proved to me that as the Attorney-General you can ensure that the law is complied with in circumstances where you have a profound understanding of the pressures on the military.
There are, in effect, two proposals before the House in this group of amendments. One is to extend the period of presumption from five to 10 years. The other is to get rid of the presumption altogether. This part of the Bill deals only with criminal offences. I think that everybody in the House is of a like mind in the following two respects.
First, Members of the House have no desire whatever to authorise in any way members of our Armed Forces committing very serious crimes, such as crimes against the United Nations convention against torture or any other sorts of war crimes, or murder or manslaughter.
Secondly, and separately, everybody in the House understands the oppression of there being what my noble friend Lady Chakrabarti described as shoddy, lengthy and repeat investigations. Nobody wants our Armed Forces to have to go through shoddy, lengthy and repeat investigations. What I think everybody wants is that there should be timely, effective and thorough investigations, and that when the timely, effective and thorough investigation is completed, the soldier or other military personnel can be confident that that is the end of it.
That is not the position at the moment. The proposal for a presumption against prosecution after five or 10 years does not deal with that problem. The best way to deal with the problem is to have effective investigations and, after the investigation is over, for there to be a limitation in some way on any further investigation unless compelling evidence comes to light that justifies reopening an investigation which the military personnel who is the subject of the investigation can otherwise be entitled to assume is at an end.
I have no idea why the Government are going about trying to deliver on what everybody thinks is a laudable aim—namely, to protect military personnel from shoddy, repeat and inadequate investigations—by this presumption. There appears to be agreement among those who would know that the proposal that is being  advanced by the Government does not deal with the problem. Johnny Mercer, in Committee in the other place, said:
“I want to reassure Members that the presumption measure is not an attempt to cover up past events as it does not prevent an investigation to credible allegations of wrongdoing in the past, and neither does it prevent the independent prosecutor from determining that a case should go forward to prosecution.”—[Official Report, Commons, 14/10/20; col. 154.]
Judge Blackett, who used to be the Advocate-General—the chief judge in the military justice system—said:
“a presumption against prosecution would not stop the knock on the door and the investigation. That is the whole point. The presumption against prosecution does not stop the investigation; the investigation happens.”
The noble Lord, Lord Lancaster of Kimbolton, said that we should not be too legalistic about this. I think he meant that we have to produce a solution to the problem. I completely agree. Later amendments in the group make it clear that there should be reinvestigation only where there is compelling evidence. Some of the amendments suggest, for example, that a judge would have to authorise further investigations to give the protection that is required and, in the words of the noble and learned Lord, Lord Mackay of Clashfern, to take away the dark shadow of prosecution.
I am very interested in these amendments. I am very keen to deliver on the purpose of the Bill, as is everybody else. I do not believe that the five-year presumption does that, and I would be very interested to hear the noble Baroness, Lady Goldie, respond to the points made by Johnny Mercer and Judge Blackett as to the fact that the Bill does not deliver on its purpose.
Three other points militate against either the five-year presumption or any presumption at all. First, this will create a special category of defence. It will in effect lead to there being a special category of criminal offences for which there is a presumption against prosecution. John Healey in another place put it very well when he said:
“Let us just step back a moment from the technical detail. This is the Government of Great Britain bringing in a legal presumption against prosecution for torture, for war crimes and for crimes against humanity. This is the Government of Great Britain saying sexual crimes are so serious they will be excluded from this presumption, but placing crimes outlawed by the Geneva convention on a less serious level and downgrading our unequivocal commitment to upholding international law that we in Britain ourselves, after the Second World War, helped to establish.”—[Official Report, Commons, 23/9/20; cols. 997-98.]
We should not be doing what John Healey described. We should be doing what the noble Lord, Lord Lancaster, hopes we should be doing. Let us do it in a direct and effective way rather than in this oblique, obscure and ineffective way.
The second reason why the presumption does not work is that it may be illegal. I would very much like to hear what the noble Baroness, Lady Goldie, has to say about the points made in the Joint Committee on Human Rights’ ninth report of this Session, which says that it offends against Articles 2 and 3 of the European Convention on Human Rights, the United Nations Convention against Torture, the Rome Statute, and customary international law. The report is basically saying that, if you could have a presumption against  prosecution where there is evidence that would justify a prosecution and the public interest favours it, why is that not contrary to the five commitments that the country has made legally?
The third point is the involvement of the International Criminal Court. We as a country ought to be prosecuting these offences, not the ICC. The noble Baroness, Lady Goldie, will know that the ICC’s chief prosecutor Fatou Bensouda said last week in a letter to the British Government that the presumption against prosecution could
“render such cases admissible before the ICC.”
How have the Government reached such a different conclusion to that of the ICC’s chief prosecutor? Does the noble Baroness, Lady Goldie, believe that the ICC has misunderstood the Bill? Is she confident that the consequence of the Bill will not be to replace one uncertainty with another, namely that our military personnel may well face long investigations and then long prosecutions in the ICC, which nobody wants? I believe it is incredibly important that our justice system and in particular our military justice system produces an answer to the problem that this part of the Bill seeks to address, but I am anxious that it will be ineffective in doing that, it will send out a signal that we are not complying with international law, and it will lead to more prosecutions in the ICC.

Baroness Goldie: My Lords, I thank the noble Baroness, Lady Massey of Darwen, and all other noble Lords for their contributions to a wide-ranging and—I certainly accept—thought-provoking discussion this afternoon. I have listened to the debate closely. We have covered extensive territory across the principles of the Bill. Before I turn to the individual amendments in the first group, I will address the range of Clauses 1 to 7 of Part 1, which a number of your Lordships would wish to remove. It may be helpful if I clarify the Government’s intent in proposing these provisions, and perhaps I should restate why there is a Bill at all.
At Second Reading I was struck by the widespread recognition that there was an issue to be addressed. Much less transparent was how your Lordships would address it. Again, views were wide ranging. I realise that the noble Baroness, Lady Jones of Moulsecoomb, is the explicit exception to that general approbation. I respect her greatly, but I completely disagree with her. My noble friend Lord Lancaster of Kimbolton, with his pertinent experience, cogently gave us a perspective on the Bill by reminding us of what it does, what it needs to be about, what it is about and why we have it.
So the purpose of the measures in Part 1 is quite simply to give service personnel and veterans greater tangible reassurance and demonstrable certainty that the unique pressures of overseas operations—and they are unique—will be taken into account when decisions are made about whether to prosecute for alleged historical offences. Let me be clear: this does not mean that the Government consider the Armed Forces to be above the law. Whenever they embark on operations overseas, they must abide by the criminal law of England and  Wales, as well as international humanitarian law, including that set out in the Geneva conventions.
Our personnel serve with great courage, commitment and professionalism, and the vast majority undertake the very difficult and often dangerous tasks that we ask of them in accordance with domestic and international law. I am very grateful to the noble and learned Lord, Lord Falconer of Thoroton, for acknowledging that. However, where our service personnel fall short of these high standards, it is vital that they can be held to account. This is one of the reasons why we have not included measures in Part 1 that would amount to an amnesty or a statute of limitations for service personnel and veterans. I am heartened that many of your Lordships have now recognised this point.
Ideally, alleged misconduct by service personnel is dealt with most effectively if individuals are investigated and, where appropriate, subject to disciplinary or criminal proceedings at the time of the conduct. However, as your Lordships understand, that is not always possible. Where it is necessary to conduct repeat investigations into alleged historical offences, or where new allegations of criminal offences emerge relating to operations many years ago, the delivery of timely justice can be extremely difficult. However, that leaves our service personnel with the stress and mental strain of the threat of potential prosecution hanging over them indefinitely.
I say to the noble Baroness, Lady Smith of Newnham, who talked about vexatious claims, that what we are talking about and what we have seen as a history of activity affecting service personnel when they return from overseas duties do confirm that there is always a very real risk of potential prosecution in respect of their activities. They may deny wrongdoing and they may be ready to defend accusations of criminal charges, but that can hang over them indefinitely. The measures in Part 1 are therefore key to providing greater clarity and reassurance to our service personnel and veterans in relation to the threat of legal proceedings arising from alleged events many years ago on operations overseas. I hope that that clarifies for the noble Baroness, Lady Smith of Newnham, why there is support for the principles of the Bill.
This clause stand part debate covers the amendment that seeks to remove all the clauses in Part 1. However, as we will be going on to debate amendments against many of the clauses, at this point I will focus my comments on the purpose and effect of Clauses 1, 2, 3, 5 and 6—Clauses 4 and 7 provide definitions and interpretive provisions for terms used within Part 1.
I liken the clauses in Part 1 to the interwoven strands in a length of fabric, because they are all connected. The purpose and effect of Clause 1 is to set the conditions for when the measures in Clauses 2 and 3 must be applied by a prosecutor. Importantly, Clause 1(2) does not have an impact on the prosecutor’s decision on whether there is sufficient evidence to justify a prosecution; the first stage of the prosecutorial test will remain unchanged.
Clause 1 further details to whom, and in what circumstances, the measures will apply. That means that the measures will apply only to members of the Armed Forces deployed in operations outside the British islands as defined in Clause 7. Overseas operations are  defined as those outside the British islands during which personnel come under attack or face the threat of attack or violent resistance. I think we all understand that operations conducted outside the United Kingdom are vastly different from those conducted within the United Kingdom. Within the United Kingdom, the military operates only in support of the civil authorities. With the exception of Operation Banner in Northern Ireland, which was an absolutely unique situation, United Kingdom operations rarely, if ever, require our personnel to operate in the same sort of hostile, high-threat environments that they face on operations overseas. Excluding Northern Ireland, there are no outstanding historical allegations relating to operations within the United Kingdom.
I again reassure your Lordships, particularly the noble Baroness, Lady Ritchie of Downpatrick, that we have not forgotten our Northern Ireland veterans. The Secretary of State for Northern Ireland will be bringing forward separate legislation to address the legacy of the past in Northern Ireland.
The second condition for the measures to apply is of course that at least five years must have elapsed since the alleged offence, with the start date being the date of the offence. I think everyone understands why it is vital that investigations into historical allegations are brought to resolution without undue delay. To provide greater assurance to our service men and women in that respect, we took account of the views expressed in response to our 2019 public consultation that five years was the most appropriate starting point for the presumption. I will deal with that further when I address the specific matter of the amendments.
Clause 2 introduces the principle of the presumption against prosecution, so that it is to be exceptional for a prosecutor to determine that proceedings should be brought for an alleged offence occurring on overseas operations once five years have elapsed from the date of the alleged incident. The noble and learned Lord, Lord Falconer of Thoroton, questions the presumption and argues that the problem is investigations. Investigations are vital and are not impeded or obstructed by the Bill. In fact it is critical that no such impediment or obstruction to investigations is created by the Bill because that would indeed risk us coming before the International Criminal Court.
However, in response to the noble and learned Lord, I say that the presumption is also necessary. That is because, again for the reassurance of our service personnel, we owe it to them to explain that we understand the unusual nature of what they are asked to do and that only they are asked to do it, and that we recognise the difficulties that confront them, as my noble friend Lord Lancaster so eloquently explained, in conflict in overseas operations. That is why the effect of Clause 2 will be that when a prosecutor considers whether criminal proceedings should be brought or continued in relevant cases, there will be a presumption against prosecution and the threshold for rebutting that presumption will be high, though not insuperable. It is right that prosecutors identify and assess “exceptional” circumstances and we are confident that they will. It is for them to make that identification, and similar terms are used frequently in existing prosecutorial guidance.
We anticipate that the presumption will operate alongside the public interest assessment as part of the prosecutor’s consideration of the full prosecutorial code test. However, it does not create an absolute bar either to investigations, as I have said, or to prosecutions. It is not acting as a statute of limitations or an amnesty because the presumption is rebuttable, with the prosecutor retaining the discretion to prosecute. Where they determine that it would be appropriate to do so, prosecution is what would follow. Importantly, that could include cases where there is evidence that a serious offence has been committed, as the severity of the crime and the circumstances in which it was allegedly committed will always be factors in a prosecutor’s consideration of a case.
Therefore, I do not share the reservations of some that this presumption is unworkable, that it is a charter for lawbreaking with impunity or that it puts a foot on the accelerator of referrals to the International Criminal Court. My noble friend Lord Faulks spoke very powerfully about that; in fact, he comprehensively slew the dragon of the spectre of referrals to the ICC.
I think that the noble and learned Lord, Lord Falconer of Thoroton, quoted the chief prosecutor, but he certainly quoted the International Criminal Court as saying that as a result of the Bill we could see referrals to the court. If we neglected our duties—if prosecutors, faced with evidence of a justiciable case and satisfied that a serious crime had been committed, omitted to take that prosecution forward—that indeed would be the risk but, as my noble friend Lord Faulks indicated, why would a prosecutor, or the UK, want that to be the outcome? If a wrong has been committed and it merits prosecution, the filters applied under subsections (2) and (3) will ensure that the prosecutor can use his discretion and proceed with a prosecution.
Clause 3 sets out the matters to which a prosecutor must give particular weight when coming to a decision whether or not to prosecute. I accept that prosecutors may already take these matters into account as part of the public interest assessment, but Clause 3 ensures that such consideration is put on a statutory footing. Again, that will provide what I have referred to as a tangible reassurance to our service personnel that the unique context of overseas operations will always be given particular and appropriate weight in the prosecutor’s deliberations.
Clause 3 also requires a prosecutor to give particular weight to the exceptional demands and stresses of overseas operations and their adverse effect on service personnel. Those factors are not empty rhetoric or imagined challenges. They are intended to ensure that prosecutors give full recognition to the marked difference in the circumstances surrounding an alleged offence committed on an overseas operation, in contrast with situations where the alleged criminal conduct occurs in a domestic civilian setting. The application of Clause 3 alongside all the other considerations still leaves the prosecutor with discretion to determine that a case should be prosecuted, even in cases where there is no compelling new evidence; it is for the prosecutor to make that judgment.
Clause 5 covers the requirement to seek the consent of the Attorney-General of England and Wales or the Advocate-General for Northern Ireland when deciding to bring a prosecution in respect of alleged offences that occurred more than five years earlier. I clarify that the consent function in the Bill does not extend to Scotland. That is because all prosecution decisions in Scotland are already taken in the public interest by or on behalf of the Lord Advocate, the senior Scottish law officer. We have introduced the consent function in Clause 5 because, again, we believe it is important for service personnel and veterans to be confident that in the context of historical allegations their case will be considered carefully and at the highest levels of our justice system.
Clause 6 defines a “relevant offence” to which the statutory presumption, the matters to be given particular weight and the requirement for Attorney-General consent for a prosecution apply. It also details those offences that are excluded, which are set out in Schedule 1. In addition, Clause 6 enables the Secretary of State to amend Schedule 1, on “excluded offences”, by way of a statutory instrument, and sets out the requirement for any such statutory instrument to be laid before and approved by both Houses of Parliament.
I have endeavoured to explain to the House and tried to illustrate how these different sections are interwoven and interconnected. It is important that that provides the Bill with the necessary coherence. I will pay more attention to, and spend more time on, the excluded offences listed in Schedule 1, which, of course, are sexual offences, reflecting the Government’s strong belief that the use of sexual violence or sexual exploitation during overseas operations is never acceptable in any circumstances.
I know that many of your Lordships have felt anxious about the omission of other crimes from Schedule 1, and the amendments tabled reflect these concerns. We shall deal with this part of the Bill in greater depth when we debate these amendments, but I emphasise that the exclusion of sexual offences does not mean that we will not continue to take other offences, such as war crimes and torture, extremely seriously. As I have indicated, the presumption against prosecution still allows the prosecutor to continue to take decisions to prosecute these offences. Again, I emphasise that the severity of the crime and the circumstances in which it was allegedly committed will always be factors in their considerations.
When service personnel deploy on operations overseas, they are in a completely different environment from their counterparts who are not on such operations or who are deployed in support of civil authorities in the United Kingdom. On overseas operations, service personnel act under unique pressures: there is a high degree of hostility, the threat of violence, the unknown, the unpredictable and the need to make instant decisions while at risk of death or injury. That is the reality of what they do, and it may give rise to a range of allegations of criminal activity. That is the reality of what our personnel may face when deployed overseas.
Finally, in relation to Clauses 1 to 7, I repeat that the measures do not seek to prevent any victims of alleged offences by service personnel bringing forward  their allegations, which will be investigated and, where appropriate, prosecuted. As I have said, there is no time constraint on investigations.
Clauses 1 to 7 are integral to the Bill: they combine to provide the greater certainty and reassurance that our Armed Forces personnel, in the unique environment of overseas operations, deserve. That is why these clauses are necessary and why they should stand part of the Bill.
I will briefly turn to the four amendments in group 1. I thank noble Lords, particularly the noble Baroness, Lady Massey, for their contributions. These amendments seek to change the starting point at which the presumption comes into effect from five to 10 years after the alleged conduct. Some background may be helpful.
In July 2019, the MoD undertook a 12-week public consultation on proposed legal protections for service personnel and veterans who served in operations outside the United Kingdom. This included a proposal for a statutory presumption against prosecution after 10 years. As these were proposals in a public consultation, they were not fixed policy; we were seeking the public’s view on them.
As we set out in our published response to the consultation on 17 September 2020, there was support for a 10-year timeframe, but, equally, there was also support for the presumption to apply immediately. We did not feel that we could justify applying the presumption immediately because our overall purpose was to address legal proceedings in relation to alleged historical offences in overseas operations. As one of the stated aims of the Bill is to help “provide greater certainty” and reassurance to our personnel and veterans, we felt that it was particularly important to take note of the comments provided by respondents to the questions about the timeframe for the presumption.
My noble and learned friend Lord Mackay of Clashfern spoke perceptively about the sanction of a prosecution. He wisely observed that it is a timely remedy to victims—but the strain on the potential accused also has be taken into account. In the consultation, we found that there were clear concerns that 10 years was too long a period of time to have this threat of prosecution hanging over a serviceperson’s head. These concerns are very much aligned with the concept of the public interest in finality—that cases need to come to a timely and final resolution.
To the noble and learned Lord, Lord Morris of Aberavon, and the noble Baroness, Lady Smith of Newnham, I say that the written responses indicated concerns with the 10-year timeframe: memories can fade, evidence can deteriorate and the context of events can change. That point was confirmed by my noble and learned friend Lord Mackay, and the noble and gallant Lord, Lord Stirrup, made helpful comments on it.
As such, given the strength of the views expressed, we felt that a timeframe of less than 10 years would be more appropriate, and five years was the most popular alternative. I hope that that explains where the five-year period came from. It was not a random choice plucked out of the air; it was based on an assessment of the responses to the consultation, which suggested that the five-year period was sensible and sustainable.
I hope that that has assisted your Lordships in understanding the Government’s attitude to Clauses 1 to 7 and why we selected a period of five years. Therefore, I urge the noble Baroness to withdraw her amendment.

Lord Russell of Liverpool: I have received two requests to speak after the Minister, from the noble Lords, Lord Naseby and Lord West of Spithead. I will call them in that order, so I now call the noble Lord, Lord Naseby.

Lord Naseby: My Lords, I spoke at Second Reading, where I said that our Foreign Office should release
“dispatches from our observers who watch war anywhere around the world.”—[Official Report, 20/1/21; col. 1231.]
I realise that Part 1 is absolutely the key issue of the Bill. I ask my noble friend on the Front Bench whether she will confirm that, when the Bill becomes an Act, in whatever form, it will be drawn to the attention of the United Nations, particularly the UNHRC in Geneva and the International Criminal Court, as well as all other relevant official bodies involved with alleged war crimes, wherever they may be?
I ask this because of current evidence that the UNHRC has not been fully briefed by Her Majesty’s Government concerning British military attaché evidence taken in 2009 in relation to the war in Sri Lanka. Therefore, there is a lack of evidence in the report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka, dated 12 January 2021. I thank the Minister for listening to this important but rather unusual dimension.

Baroness Goldie: I thank my noble friend for his contribution. I am not terribly well equipped to deal with the specific aspect of his comment and inquiry in relation to Sri Lanka and the apparent lack of evidence that he argues is the case in relation to the Office of the United Nations High Commissioner for Human Rights. I can certainly undertake to investigate that, and it may be a matter to which my noble friend Lord Ahmad of Wimbledon might wish to respond.
As for drawing the attention of international bodies to the Overseas Operations (Service Personnel and Veterans) Bill when enacted, I think—from the responses that we are aware of—that it has already attracted widespread comment from international organisations. I am sure that, as part of their public affairs monitoring, they all take account of legislation coming out of various countries. However, the noble Lord makes an interesting point, and I shall reflect upon it.

Lord West of Spithead: My Lords, taken together, many of the amendments that we have just discussed certainly seem aimed at emasculating and, indeed, wrecking the Bill. I have no doubt whatever that the Bill is necessary: it lances a long-standing boil and fulfils a promise to our military. The issue has proved too difficult to tackle, time and again, and it is about time that it was tackled. The Bill must go forward.
We need the Bill so much, and I think the amendments we have discussed should go. There are a number of amendments that will resolve the wrinkles, but is it not   the case that we will touch on some of the things already discussed in later amendments, when there will be a chance to correct them?

Baroness Goldie: I thank the noble Lord for his very candid assessment of both the situation that we seek to address and how the Bill seeks to do so. In my role as Minister for Defence in this House, I have certainly pledged to engage with your Lordships; it has been my pleasure to engage with a considerable number of you.
In my remarks on Clauses 1 to 7 of the Bill, I indicated that I am aware of the profound concerns of many Members of this House. I say to the noble Lord, Lord West, that it is my desire to continue my engagement. I shall listen very closely to the contributions during the rest of the debate on the groups of amendments that we are scheduled to deal with today. It is not a cosmetic interest; I understand the depth of concern, and, in reflecting on all the contributions, I shall consider whether some avenues are available to me to try to assuage some of these concerns.

Baroness Massey of Darwen: My Lords, this has been an extraordinarily rich and challenging beginning to our consideration of the Bill. I thank the Minister, for whom I have the greatest respect—I know that she is concerned about all these issues—for her detailed response. However, there are some things that are still unclear and about which I have doubts, and I shall come on to those in a moment.
We have had a particularly enlightened debate, with huge depths of knowledge from the perspectives of law, military engagement and political practice. I totally respect all of that and listened to it with great interest. The bottom line is that we want to make things better for our Armed Forces, which do have our respect. I do not think that the Bill has all the answers. Many noble Lords—too many to name—have demonstrated that. We have heard about the challenging aspects of investigations, in the risk to the Armed Forces and legal structures, and much has been covered in this one debate. I wonder what else is to come.
I have been waiting for the Minister to answer all the many excellent points made by my noble and learned friend Lord Falconer of Thoroton. The noble Baroness has been very eloquent, but I am left with some queries. I shall read the noble Lord’s questions and the Minister’s answers again carefully, but I am not totally convinced, for example, by her arguments about the proposals for public consultation. I really do not understand the reasoning behind that—and there are other aspects, too. The debate has left us all with much to ponder and decisions to take about future action. In the meantime, I beg leave to withdraw the amendment.
Amendment 1 withdrawn.
Amendment 2 not moved.
Clause 1 agreed.

Lord Russell of Liverpool: We now come to the group beginning with Amendment 3. Anyone wishing to press this, or anything else in this group, to a Division must make that clear in debate.

  
Clause 2: Presumption against prosecution

Amendment 3

Lord Falconer of Thoroton: Moved by Lord Falconer of Thoroton
3: Clause 2, leave out Clause 2 and insert the following new Clause—“Ability to conduct a fair trial The principle referred to in section 1(1) is that a relevant prosecutor making a decision to which that section applies may determine that proceedings should be brought against the person for the offence, or, as the case may be, that the proceedings against the person for the offence should be continued, only if the prosecutor has reasonable grounds for believing that the fair trial of the person has not been materially prejudiced by the time elapsed since the alleged conduct took place.”Member’s explanatory statementThis new Clause replaces the presumption against prosecution with a requirement on a prosecutor deciding whether to bring or continue a prosecution to consider whether the passage of time has materially prejudiced the prospective defendant’s chance of a fair trial.

Lord Falconer of Thoroton: My Lords, in this group I shall address Amendments 3, 5, 6, 17 and 28. This group seeks, in a variety of ways, to deal with a problem that the Minister identified in her helpful concluding remarks on the last group—namely, stopping the endless shoddy reinvestigations, because that is the real problem.
Since the year 2000 there have been 27 prosecutions in relation to Iraq and Afghanistan. The Ministry of Defence gave evidence to the Joint Committee on Human Rights, which led to its ninth report, dealing with this Bill. The Bill team co-ordinator—I think that was his exact title—Mr Damian Parmenter, did not identify as the problem that the wrong decisions had been made in relation to prosecutions. He identified that the problem was with the reinvestigations, as did Mr Mercer in the other place and Judge Blackett. We need to address the issue directly, not indirectly. The question that I had asked and was waiting most keenly to be answered by the Minister was how the Bill dealt with this presumption—and answer came there none from the Minister, I would submit. If the issue is not the decision about prosecution but the endless process of investigation, this Bill does not deal with it.
These amendments actively seek to deal with this problem. Amendments 3, 5 and 28, in the name of my noble friend Lord Tunnicliffe, in effect seek to do three things. First, they remove the presumption against prosecution after five years. They say instead that after five years the prosecutor must have regard to whether there can be a fair trial, given the time elapsed. Any reasonable prosecutor would consider that anyway, but it is right to make that explicit.
What is more, my noble friend’s group of amendments keeps in the considerations that the Bill already has—namely, the effect on the prospective defendant of a war situation, and the fact that the passage of time will have affected memories—and adds a third consideration, one that everyone would agree with, of what has been the quality and duration of the relevant investigation. In other words, if the quality and duration had been poor, that would militate against prosecution. So instead of there being a presumption against, the prosecutor is focused on the question of whether there can be a fair trial after five years, having regard to the very same considerations that the Government would wish them to have regard to, but also to the quality and duration of the relevant investigations.
Amendment 28, which comes after Clause 12, also provides that once an investigation is over and concludes that there should not be a prosecution, a reinvestigation can take place only if
“compelling new evidence has become available”
and
“an allocated judge advocate determines that the totality of the evidence against the accused is sufficiently strong”.
It has, therefore, to be compelling evidence to justify a new investigation.
I think all noble Lords have the greatest respect for the noble Baroness, Lady Goldie. We are incredibly keen to get a solution to the problem that the noble Lord, Lord Lancaster, and the noble Lord, Lord West of Spithead, referred to. The proposals made by my noble friend Lord Tunnicliffe, and indeed those from the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Smith, basically say that after six months you need permission from an appropriate authority to go on and, when you come to the end of the investigation and decide not to prosecute, you need permission from an appropriate authority to reopen the investigation. These amendments are dealing with the problem, which is not the decisions made in the 27 cases but the stop-start cloud hanging over military personnel for years and years. I beg to move.

Lord Thomas of Cwmgiedd: My Lords, I speak to Amendment 6. Its purpose is simple—that the decision that the prosecutor makes takes into account the quality, thoroughness, independence and accountability of the investigation. It may be said—as appears from the Minister’s letter—that these matters are being looked at by Sir Richard Henriques in the review that he is conducting. No doubt the detail of all this can be gone into at that time—for example, how independence is to be safeguarded and accountability achieved. No doubt we will need to look at the position in other states. All that is for the future.
However, this Bill is being brought forward now. One matter that must be addressed now is that prosecutors, in deciding whether to continue, have to take into account the quality of the investigation in the respects I have set out in the amendment. I have put this forward based on my own experience of three cases that came before me when I was a judge. In the military context—and the civilian context is exactly the same—they pointed to the importance of thorough, well-resourced investigations.
The first case related to the deaths of 24 people in what is now Malaysia during the communist insurgency in 1948, which came back to the courts in 2011. That very unhappy series of events came back because the initial investigation was not thorough, a subsequent investigation was stopped before it was completed and, by the time the matter came before the courts, there was clear evidence that the original explanation of what had happened—namely, that these persons killed had been shot trying to escape—had been given by soldiers on instructions and that 24 people were killed in cold blood.
The second illustration relates to invents in Iraq and what happened in numerous cases, the most significant of which is the death of Baha Mousa. That is a paradigm example of how a poor investigation can be so terrible that it sometimes takes a very long time to see what went wrong.
The third and perhaps more surprising example is the conviction of Sergeant Blackman for shooting a member of the Taliban. When it originally came before the court martial, there had not been a sufficiently proper investigation of the circumstances, the stresses he underwent and his perception of the support he got from his command. That came out only afterwards and was one of the matters that, as appears from the judgment of the Court of Appeal, led to his conviction being reduced to manslaughter.
The thoroughness and independence of the investigation are critical in any decision to prosecute. A similar reflection can be obtained from ordinary cases; where things have gone wrong or there is a problem, it is the investigation. It is important that an investigation is fair—that is why it is listed—and thorough. And it should be fair in both senses: to the accused and to those who say a crime has been committed.
Independence is of equal importance. Any detailed consideration of the Malay case to which I referred and of the judgment of the Court of Appeal in the Blackman case shows how independence and accountability are also important. Therefore, what must be taken into account as a matter of principle—not of detail, that is for later—are these matters relating to the investigation. It may be said, “Well, things have got a lot better”. However, we all know that even the most well-organised body can make mistakes in the conduct of an investigation, and accountability and independence need to be of a very high level in certain types of case.
I am putting forward this amendment to show that this nation has regard to the covenant and the support it is necessary to give to our Armed Forces, but also to show that we must be seen to do justice, because the doing of justice is equally important. The quality, thoroughness, independence and accountability of the original investigation, if there has been one, or of the more recent one, should be at the forefront of the prosecutor’s decision.

Baroness Smith of Newnham: My Lords, as I said in my comments on the first group of amendments, the vagaries of parliamentary procedure mean that in some ways the groups of amendments are being debated in a less than helpful order. I hope that this group of amendments and the suite of proposals will reassure the noble Lords, Lord West of Spithead  and Lord Lancaster, and others who had any concerns that perhaps supporters of the first group might be seeking to eviscerate the Bill in its entirety.
This suite of amendments is intended to be constructive. I will speak predominantly to Amendment 17, in the name of my noble friend Lord Thomas of Gresford and myself, and Amendment 28. They are both about investigations. If the purpose of the Bill is to stop unnecessary investigations and investigations being brought many years later, these two amendments in particular seek in clear and specific ways to give substance to the Government’s stated aims.
Amendment 17 gives a very clear outline of what could be done in terms of investigations: how they should be taken forward and, after they are completed, moved to prosecution. We have not heard huge numbers of veterans saying they have been prosecuted many times, but we have heard concerns about people being investigated and never getting closure. Amendment 17 gives a very clear outline of how investigations could be dealt with.
Amendment 28, in the names of the noble Lord, Lord Tunnicliffe, and the noble and gallant Lord, Lord Boyce, puts limitations on reinvestigation. That surely goes to the heart of what the Government say that they wish to do. If the Government really wish to have the best legislation to serve their own stated aims and fulfil the needs and expectations of current service personnel and veterans, could they please consider these amendments?
In your Lordships’ House, the Minister often feels the need to say that, however laudable the goals of the amendments are, they do not quite fit the approach that the Government want to take. If the Minister does not feel able to support the detail of the amendments, might she consider coming back with some government proposals on how investigations and reinvestigations could be dealt with in a way that would enable the Bill to do what it says on the tin?

Lord Lancaster of Kimbolton: My Lords, it is a pleasure to contribute to this group. I am particularly grateful to the noble and learned Lord, Lord Falconer, for the clarity with which he introduced these amendments.
I turn first to Amendment 3, which effectively seeks to remove Clause 2. That clause, the “presumption against prosecution”, is very powerful. I of course accept that this may not have the legal force it implies to some laymen, not least because of the other measures in the Bill, but it does indicate a very clear change of direction. If one of the aims of this Bill is to offer reassurance to our service personnel and veterans, this is a very powerful clause.
Amendment 3 seeks to delete this clause and effectively replace it with a guarantee of a fair trial. As the noble and learned Lord, Lord Falconer, said, this would happen as a matter of course. I have never met a service man or woman whose concern has been that they will not receive a fair trial in the United Kingdom. So, on the face of it, it does not seem to be a particularly good trade. Removing a presumption against prosecution from Clause 2 and replacing it with a fair trial does not send a particularly powerful message—but I do understand why it is being proposed.
The amendments on reinvestigation are a bit of a mixed bag. The measures in Part 1 of the Bill do not have a direct impact on repeated investigations—credible allegations will continue to be investigated—but I am concerned that the amendments relating to investigations do not account for the lessons that we have learned from Iraq and Afghanistan, as raised by the noble and learned Lord, Lord Thomas, and the noble Baroness, Lady Smith.
As I mentioned at Second Reading, having been Minister for the Armed Forces for a number of years, I witnessed and recognised that the quality of investigations, as highlighted in this debate, improved significantly, particularly in the latter stages of IHAT and, even more importantly, during Operation Northmoor on the investigations in Afghanistan. The thoroughness of those investigations and the improvement in their quality proved vital, in the collection of evidence and documentation, in helping to prevent further reinvestigations, because the evidence was already there. It is important to take the necessary steps to try to ensure that any future incidents are reported and appropriately investigated at the time, reducing the risk for our personnel of historic investigations and particularly reinvestigations, as I said.
I have some sympathy with Amendment 28 and its call for the earlier involvement of a judge advocate, based in part, I believe, on the evidence given to the committee by Judge Blackett, a man I have worked with and have enormous respect for. This and others, such as Amendment 18 on minor offences, which we will discuss later, are genuine attempts to relieve pressure and increase the effectiveness of the service justice system. I hope that my noble friend will look at them seriously; if not, as the noble Baroness, Lady Smith, said, perhaps the Government will consider coming back on how some of these ideas could be incorporated into the Bill.
I sense that, over time, prosecutors should be able to advise police earlier in the process as to whether these new statutory requirements would be met in a particular case and whether investigations are likely to be worth continuing, with the obvious intention of ending investigations earlier where it is clear that there is no case to pursue. While I recognise that the review by Sir Richard Henriques will not revisit past investigations or prosecution decisions but focus on the future, allowing the consideration of options for strengthening internal processes and skills while ensuring that our Armed Forces continue to uphold the highest standards of conduct when serving on complex and demanding operations around the world, I hope that it will help to build on the lessons learned to ensure that allegations are taken forward in a timely manner, providing reassurance to victims, witnesses and suspects alike. The risk of justice delayed, justice denied applies to the subjects of complaints in addition to those who make them.

Lord Browne of Ladyton: My Lords, it is a pleasure to follow the noble Lord, Lord Lancaster of Kimbolton. He brings a valuable perspective to our deliberations. I welcome his contribution and agree with some of it, as will become apparent.
My position on this Bill is essentially that so clearly set out by my noble and learned friend Lord Falconer of Thoroton in his speech on the previous group. I agree with him that this group contains a range of amendments that are aimed at the true source of the problem that the Government have in their sights. I agree with the points that he made, so there will be little point in repeating them. However, to repeat what I said at Second Reading,
“the Bill does not resolve the problem of repeated and prolonged investigations because the Government have chosen to frame the issue as a legal problem, when the truth is that it is a problem about the timeliness and quality of investigations.”—[Official Report, 20/1/21; col. 1207.]
I begin the meat of my contribution with reference to the letter that we received last week from the Minister—for whom I share the regard expressed by others in this debate; I thank her for the letter—seven paragraphs of which sought to persuade us that this Bill would not be improved by specifically addressing investigations and implied that doing so might be counterproductive and unhelpful. The letter even employed the word “danger”; I infer from that that she thought it might be dangerous too. Expecting that the content of her letter will serve as a template for her response to this set of amendments, I want to test its argument.
As we have heard, few criminal prosecutions arising from the wars in Iraq and Afghanistan or from recent overseas operations have in fact been brought against service personnel. None, as far as I am aware, is in the pipeline or anticipated. I encourage the noble Baroness to point to any criminal case that should not have been pursued, if she can identify one, as I suspect she can. Given that context, it is heroic on the Government’s part—to say the least—to attempt to justify the need for legislation against the legal process of prosecution when no history of unjustified prosecutions exists.
This is the more so because, when Ministers are asked what justifies this legislation, their consistent response is to point to a cycle of unjustified investigations into unjustified allegations against soldiers. This Bill will not stop that. In her letter of 26 February, the noble Baroness wisely does not claim that it will. Rather, while expressly accepting the need for continued improvement in investigations—I accept that significant improvements have been made—she sets out an argument for how the Bill might eventually improve them, to encourage those of us who are more inclined to argue for investigation legislation and prosecution legislation. This seems a rather odd argument, so I quote it. She says that
“while the Bill does not contain measures that would have a direct impact on the conduct of investigations … we have included measures in the Bill that may have an indirect impact.”
Surely it is better to legislate for steps that will directly impact the problem than to hope that, indirectly or incidentally, measures in the Bill, while not solving the problem, might in the course of time dilute it.
While I have great respect for the noble Baroness, as I have said, I regret that the paragraphs headed “criminal measures and investigations” in her letter do not provide a justification for this legislation, devoid as it is of any overt attempt to address the real problem. It is no answer to this criticism that, for further improvements  to the investigative and prosecutorial process, we should wait for the outcome of the review by Sir Richard Henriques to
“complement this Bill in further reducing the uncertainty for Service personnel about investigations.”
In any case, is there not already a service report from last February, elements of which could have been included here and are not?
Further, it is difficult to be persuaded given what the Minister Johnny Mercer said in a Guardian podcast in 2019. This is not just any Minister—he is responsible for the passage of this Bill. Comprehensively, he set out the problems in that podcast, saying that
“one of the biggest problems … was the military’s inability to investigate itself … and the standard of those investigations … If those investigations were done properly … we probably wouldn’t be here today.”
When the noble Baroness responds, could she address the content of that podcast? At Second Reading I sought to tempt her to do so, but she did not. Can she explain why an explanation of the cause of the problem that was good enough for Johnny Mercer in 2019 should be ignored by your Lordships’ House today, and can she justify those seven paragraphs of her letter?
Also, the failings and imposition of shoddy further investigations on earlier investigations were not brought about in many circumstances by those set out in the letter from the noble Baroness; they were brought about by the arguments put forward in litigation that had its roots in the wars in Iraq and Afghanistan, where it was successfully argued that insufficient inquiries had been made into credible allegations of abuse at the relevant time. Had there been competent criminal inquiries within a reasonable period of time of the allegations, it surely would have been much more likely that the victims would have received justice and those who had been unfairly accused would have been fully exonerated within a reasonable period of the allegations.
This is a view held by many current and former members of the Armed Forces and one of the many reasons, as I understand it, why Judge Advocate-General Jeff Blackett has expressed serious concerns about the Bill. The Director of Service Prosecutions, essentially agreeing with the 2019 version of Johnny Mercer’s analysis, recognised that it is the lack of prompt investigations at the time that lies at the heart of the issue.
If the Government are not going to engage with the real problem when it is obvious and identified by a diverse group of people with expertise and experience in this area, it is the duty of your Lordships’ House to amend the Bill to do just that. That is what these amendments seek to do: they are designed to ensure prompt, independent investigations into criminal allegations. Their absence from the Bill is fatal to its purpose. The acceptance of these amendments is in the interests of victims and of our military. The experience that too many of them have gone through compels us to put in place a system where complaints are investigated properly and dealt with within a reasonable amount of time. That ought to be our priority.

Lord Boyce: My Lords, it is a pleasure to follow the noble Lord, Lord Browne, on this because I agree with the thrust of his comments. The Bill sets out to make statutory provision about legal proceedings for our Armed Forces when they are or have been engaged in overseas operations, which, of course, is a very laudable aim. However, the Bill’s significant emphasis on the presumption against prosecution as a way of relieving some of the stress of legal proceedings is misplaced. It is the investigation and then the reinvestigation process that so wears people down. A prosecution may even be a form of relief when it comes.

Viscount Younger of Leckie: I am sorry to interrupt the noble and gallant Lord, but we cannot hear him very well. We shall come back to him later in the debate.

Lord Russell of Liverpool: Lord Boyce, we will come back to you later. I now call the noble and learned Lord, Lord Hope of Craighead.

Lord Hope of Craighead: My Lords, I spent four years at an earlier stage in my career as a prosecutor in Scotland. I was one of the Lord Advocate’s relatively small team of Crown counsel, known as his advocate deputes. For much of that time, the Lord Advocate was the noble and learned Lord, Lord Mackay of Clashfern. It is a real pleasure to see him taking part in our proceedings this afternoon. It was part of my job to take decisions under his authority as to whether or not a prosecution should be brought, and to conduct the prosecution if it was decided that it should proceed. I therefore have some insight into how these decisions are taken.
Of course, there are differences between my job then and what we are contemplating now. I was working in Scotland, under its own system of criminal law, about 40 years ago. While nothing much was actually written down then, there were some well-understood principles to guide us. Much of this was based on the fact that we were acting in the public interest. We had to balance the interests of justice against the accused’s right to a fair trial. Within those broad concepts, there was room for a variety of other factors that we would take into account, guided by common sense and what we had learned by experience.
That having been said, I acknowledge that in today’s world there is the need for a more formalised system of rules. That helps to achieve consistency in decision-making, and it helps to reassure the public that these important decisions are soundly based. In the context of this Bill, I acknowledge that “the public” must include service personnel serving or who have served in operations overseas. After all, reassurance to them is what this Bill is all about.
That brings me to Amendment 3, and afterwards to Amendments 5, 6 and 28. The wording of Amendment 3 does not come as any surprise to me. It relates to the ability to conduct a fair trial, and makes a proposition that hardly needs to be said. As the noble Lord, Lord Lancaster of Kimbolton, said, this principle applies as a matter of course. I cannot imagine that the proposition would have escaped my attention had  I been responsible for taking these decisions, but of course the real point of Amendment 3 is to challenge the presumption and replace it with something else which has equivalent force, removing the hard edge of presumption.
On the whole, I am uneasy about a presumption that applies after a particular time limit. Cases vary and the facts differ from case to case; what might be absolutely right in one case could be very unfortunate in another. There is a real difference, however, between the presumption in Clause 3, which uses the word “exceptional”, and the word “materially”, which is the key word in the amendment. It is a much softer alternative. I am uneasy as to whether it really is an adequate replacement for the presumption if the aim is to get rid of the presumption and replace it with something of equal force.
Amendments 5 and 6 do add more, especially by reference to the duration of the investigations and the standards to be applied. An important aspect of these two amendments is the undoubted need to address a problem that has caused great concern, as others have said. The points that they raise are, perhaps, not directly related to the need for a fair trial and, therefore, would not have immediately sprung to my mind as a prosecutor, but they have at their heart the interests of fairness to the person whose conduct is under scrutiny. I therefore support the proposition that these should be written into the prosecutors’ rulebook. The quality of the investigations, as the noble and learned Lord, Lord Thomas of Cwmgiedd, said in his very forceful speech, do need to be carefully assessed and taken into account.
That brings me to Amendment 28, which I also support. The tradition in which I was brought up was firmly against the resurrection of a prosecution after an acquittal, or where an assurance had been given to the accused that no proceedings would be brought. We have to accept, however, that there are cases where compelling new evidence, such as that revealed by DNA testing, requires that further steps be taken. This amendment deserves very careful consideration and strikes the right balance. The new evidence needs to be compelling—as indeed it should—and it needs to be assessed in the light of the totality of the evidence by a very skilled judge. It serves the broader aim of improving the quality of the investigations and the time taken to conduct them. The prospect that it may well do so persuades me that that amendment should be supported.

Baroness Chakrabarti: My Lords, I will not seek to replicate the eloquence and experience of noble and noble and learned Lords, including noble friends who have spoken before me. Instead, I will take on the challenge of addressing the noble Lord, Lord Lancaster, directly, because he is the person with whom I most disagree. From his comments in the previous group, I think he is particularly concerned about lawyers in this context. Perhaps he shares some of the concerns of his colleagues in the other place about warfare and a lack of warmth and respect for our Armed Forces.
I would like to reply to him in the following way in case it helps us develop some common ground in scrutinising this legislation. For pretty much the whole of my career as a human rights lawyer and campaigner, I have been accused—I would say falsely—of being soft on crime, soft on those suspected of crime and soft on those accused of crime. I would say that I am not soft: I just believe that people should be protected from false accusations and charges by due process, and that a miscarriage of justice—a wrongful conviction —delivers more, not fewer, victims. That has been my view, whether the person accused is in civilian life or in uniform, so I have not given up—nor have other lawyers in this debate or in the country at large—on the jealous protection of due process just because the people who are accused may be members of our military.
The concerns expressed by everyone on this group of amendments, and many on the earlier group, are about this part of the Bill addressing prosecutions—which have not been a problem—instead of investigations. That is why the noble Baroness, Lady Smith, wished that we could have got to the meat—the heart—of the debate sooner, but that is not in the natural order of things. Legislators, as opposed to Governments, are not in a position to do what is really required, which is to redesign and devote investment to a robust investigative system that is suitably independent, swift and resourced. Instead, we have these amendments, which probe what fair and robust investigations would look like to safeguard —I stress, safeguard—military personnel from the concerns that they have expressed over many years from the shadow that hangs over them. That is why the amendments are well put, if only in the first instance as probing.
The noble Lord, Lord Lancaster, said that he did not really see the value of Amendment 3, in the name of my noble friend Lord Tunnicliffe and the noble Lord, Lord Thomas of Gresford—who spoke so ably earlier on—because it would replace Clause 2, which is about prosecutions being “exceptional”, with a new, perhaps more convoluted form of words, which he might think is trees and not wood, about the dangers of being “materially prejudiced” by the passage of time. “Exceptional” is not desperately helpful as a new test when prosecutions have been so truly exceptional up to now. Prosecutions have not been a problem. No one is suggesting that lots of vexatious prosecutions have been a problem but merely that people have been worried about them because of shoddy, lengthy and delayed investigations. The status quo is for prosecutions to be quite exceptional. We are not seeing very much by way of guidance to prosecutors in the current Clause 2, which says that such prosecutions, as part of a triple lock, should be exceptional.
Further, we still have a Human Rights Act, and this legislation has to be predicated on the fact that that will continue—certainly, CHIS legislation was tightly predicated on that proposition. There has been case law during the tenure of the Human Rights Act showing that, if it is necessary to do so to comply with human rights, “exceptional” can be read as something that is much more routine. If, as some of us believe, this legislation, unamended, would give rise to violations of victims’ human rights, “exceptional” in the current Clause 2 would have to be construed by courts as something that is quite possibly less than exceptional  and therefore not the position that the noble Lord, Lord Lancaster, would like. Amendment 3 as proposed by my noble friend Lord Tunnicliffe and the noble Lord, Lord Thomas of Gresford, is much more precise about what is sought to be avoided in the interests of the accused, which is a test that they not be materially prejudiced by the time elapsed. We are supposedly here to reassure armed personnel, who we know are very concerned about time elapsing, and their chances of a fair trial being prejudiced by that, because of the shoddy, delayed and repeat investigations that we have seen.
If I were serving in the military, I would take much greater comfort from protections in relation to these investigations in general, but, if we are going to look at provisions of this kind—which I do not support, because I do not support the presumption against prosecution—this concept of being materially prejudiced by the passage of time, through no fault of my own, should give far greater comfort to me as an accused than would the word “exceptional”, which could become devoid of content.

Lord Anderson of Ipswich: My Lords, when the Minister introduced this Bill at Second Reading, she said that she detected broad sympathy with its objectives. If she meant the objective of protecting our veterans against repeated and delayed reinvestigations for which there is no new or compelling reason, I am quite sure she was right. The noble Lord, Lord Dannatt, mentioned Major Bob Campbell, as has the noble Lord, Lord Faulks, today. Major Campbell was investigated multiple times over 17 years in relation to the death of an Iraqi teenager—eight times according to the noble Lord, Lord Dannatt, and 11 times according to the noble Lord, Lord Faulks—before being finally exonerated last year by an inquiry led by the noble and learned Baroness, Lady Hallett.
That multiplicity of investigations is something that surely no noble Lord would wish to defend, although the fact that the ICC prosecutor looked carefully at the case and decided not to proceed only because there had been a thorough investigation by the state should be a warning against any complacency that we can weaken our standards of investigation while still keeping the ICC at bay.
Amendment 28 seeks to attack the problem of multiple investigations directly by injecting an element of independent quality control into the investigations process. It would require further investigations to be conditional on compelling new evidence emerging and on an allocated judge advocate considering the totality of the evidence to be sufficiently strong. Like the Henriques review, which I welcome, Amendment 28 has the advantage of straightforwardly addressing the issue of repeated inconclusive investigations. I would, however, voice two reservations, with ICC-proofing in mind. First, is a judge advocate a sufficiently independent figure to apply the filter? Secondly, a high bar is set by the requirement of “compelling new evidence”, a bar which one would not normally expect to be surmounted without the conclusion of precisely the further investigation for which this test would be a precondition. Perhaps I might suggest “there is a compelling reason” as more realistic wording for proposed new subsection (2)(a).
Amendment 17 seeks to address slow investigations. Proposed new subsections (3) and (5) would put some time limits into the process. That, again, strikes me as a solution which, whether appropriate or not in all its detail, is at least directed to a real problem. Let us take the case of Baha Mousa, who died in British custody in 2003 after being hooded, deprived of food and water, and beaten, sustaining at least 93 injuries. The first round of prosecutions, to which the noble Lord, Lord Lancaster of Kimbolton, referred earlier, was characterised by a closing of ranks and achieved only a single conviction, in 2007, on a guilty plea by a corporal to a charge of inhumane conduct. There followed a three-year public inquiry, led by Sir William Gage, which in its three-volume report of September 2011 made detailed findings about the circumstances of Baha Mousa’s death and identified 19 soldiers directly involved in his abuse. The Iraq Historical Allegations Team was tasked in May 2012 to review that report with a view to assessing whether more could be done to bring those responsible to justice.
A year later, in May 2013, a Divisional Court led by my noble and learned friend Lord Thomas commented in the Ali Zaki Mousa (No. 2) judgment:
“There plainly is a pressing need for a decision to be made very soon as to whether any prosecutions are to be brought”,
adding that
“the delay in making decisions in respect of prosecutions concerning those responsible for the Iraqis who died in custody is a source of increasing concern”.
Yet more than two years after that, in June 2015, it fell to Mr Justice Leggatt to record in the Al-Saadoon case that a team of 13 people were still working on the Baha Mousa case and that the investigation was now expected to take until December 2016 to complete. I believe that, in the end, no further prosecution was brought.
This does not seem to me to be a case in which the test for prosecution should have been made harder to satisfy five years after the incident in 2008; the damning findings of the public inquiry would make that a difficult position to maintain. However, it surely is a case in which much greater speed was desirable, particularly after the public inquiry had reported in such detail. I look forward to hearing what the Minister has to say about the speed of the investigative process and whether there might be value in some injection of discipline as to timing, whether as contemplated by Amendment 17 or otherwise.
Amendments 5 and 6 strike me as more in the nature of damage limitation. One of the unsatisfactory things about the presumption against prosecution after five years is that it risks incentivising those who would spin out or frustrate a valid investigation. These amendments seek to reduce that danger by requiring prosecutors to give weight to the quality and duration of relevant investigations; so far as they go, I support them.
On their own, however, they do not remove the broader misgivings that many noble Lords have expressed about the presumption against prosecution. Those misgivings, which I broadly share, would be substantially reduced by Amendment 3, which would replace the  presumption against prosecution with a more anodyne requirement to consider whether the passage of time has materially prejudiced the chance of a fair trial. Its force lies not so much in what it puts in as in what it takes out.
The question as yet unresolved in my mind is how far it is appropriate for this House to go in relation to these difficult and interlocking issues: whether it would be right for us to take the heart out of Part 1, as Amendment 3, albeit elegantly, would do, or whether we should aim less ambitiously, but still significantly, to incentivise better investigations, as the other amendments in this group seek to do, and to ensure in accordance with Amendment 14—which we shall come on to discuss—that, for the protection of our own service personnel, Part 1 will not apply to crimes within the jurisdiction of the International Criminal Court.

Baroness Fookes: I believe that we are trying to reconnect with the noble Lord, Lord Boyce.

Lord Parkinson of Whitley Bay: The noble Lord should now continue and we will see how well we can hear him.

Lord Boyce: My Lords, this Bill sets out to make better provision on legal proceedings for our Armed Forces when they are, or have been, engaged in overseas operations. This is a very laudable aim, but the Bill’s significant emphasis on presumption against prosecution as a way of relieving some of the stress of legal proceedings is misplaced. It is the investigation and reinvestigation process that so wears people down, and prosecution, when it comes, may even be a form of relief. The noble and learned Lord, Lord Mackay, alluded to this matter of waiting in the last group of amendments.
Anyway, we should bear in mind that, even when the presumption is in place, there is no total lifting of the threat of prosecution after five years. As the Minister has told us, this can still happen if the Attorney-General sees fit. Furthermore, there could be the spectre of an even longer investigative process if the case falls into the hands of the ICC. I know that the matter of the ICC has been well covered this afternoon, and that the Minister has sought to reassure us on this point, but I am afraid that I am not convinced. Nor it seems is the ICC, which apparently remains unconvinced by any assurances that the Government may have tried to make in defence of the Bill.
This is by the way, because, as I have mentioned, it is the investigation process that needs primarily to be addressed: to be sharpened up to ensure that it is not a fishing expedition, that there is value in pursuing the matter under consideration, that it is constrained in length, and that reinvestigations are launched only after the most careful judicial oversight. The noble and learned Lord, Lord Falconer, has captured all this rather well, as indeed have other noble Lords. It is for these reasons and others that I support Amendments 5 and 28, to which I have put my name, and, indeed, other amendments in this group. I concur with much of what other noble Lords have eloquently said on the matter of investigations; I will spare your Lordships a repeat of all that has gone before in this group.

Lord Thomas of Gresford: My Lords, the problem of investigations—as well as of late and inadequate investigations—should be addressed and the process sharpened up. The noble and gallant Lord, Lord Boyce, told us this a moment ago and I thoroughly agree with him. The problems have been very clearly outlined by the noble and learned Lord, Lord Falconer of Thoroton. I echo the noble and learned Lord, Lord Thomas of Cwmgiedd, who emphasised that justice must be done based on thorough and prompt investigation. The noble Lord, Lord Lancaster of Kimbolton, is sure that investigations have improved in recent years; I hope that that is true.
I stress first of all the inherent difficulties of investigations into alleged conduct arising out of overseas operations. The noble Lord, Lord Browne of Ladyton, believes that they should be timely and of quality—of course they should. In the United Kingdom, most crimes are investigated by one or more of the 45 or so police forces within their area of operations. Local police forces can readily pull in extra investigatory resources, including scientific investigations, if they need them.
By contrast, investigations by the military police may occur anywhere in the world. Co-operation by the civilian population or even the civilian police cannot be guaranteed. There are usually significant linguistic and cultural problems in the collection of statements from witnesses. It may be that a complainant—a foreign national—has his own axe to grind. The noble Lord, Lord Anderson, reminded me, with the Baha Mousa case, of another problem, where the judge said in his closing remarks that there had been a closing of ranks; that is a problem with the natural desire of soldiers to support each other.
There can be security problems. When in 2005 it was decided that an inspection of a dusty Iraq village was desirable, a whole company or more of 200 soldiers was deployed to provide protection for the dozen or so sheepish lawyers who attended. I was not one of them: the MoD was not prepared to insure the silks in the case. There is no immediate access to the support that a civilian police force in this country might expect. It follows that delays are inherent and inevitable, but they are not desirable. Yet we can read the whole of this Bill and find nothing which deals with the essential preliminary to any prosecution: a thorough, prompt investigation.
This group of amendments suggests various pathways to ensuring that the length and efficiency of an investigation is controlled. Amendment 17, in my name and that of my noble friend Lady Smith, sets out a practical route for putting the investigation under the control of the Director of Service Prosecutions. An investigator must, within six months of the complaint, provide a preliminary report to the DSP of the progress of his investigation. As may well happen informally in any event, the DSP may give guidance on the lines of inquiry which would be appropriate.
In my amendment, if, on an assessment of all the papers, the DSP sees no future in the investigation, he would have the power to terminate it then and there. If he orders the investigation to continue, there would be regular reporting to him of the progress of the inquiry, again with the possibility of him calling a halt. I have  discussed this with the former Judge Advocate-General, Judge Blackett. He is of the view that control of the investigation is highly desirable but that the power to stop an investigation should rest with a designated judge, not with the DSP. A moment ago, the noble Lord, Lord Anderson, suggested that this might not be satisfactory and that a more independent person should be involved in supervising an investigation. I am not really worried about what way one approaches it, but there should be control of an investigation to ensure that it is proceeding at a proper pace and in a proper direction. I think there was a modicum of support for that amendment even from the noble Lord, Lord Lancaster of Kimbolton. Since the DSP has the undoubted power to decide not to prosecute on the conclusion of an investigation, I do not see any problem with the DSP controlling the steps leading up to the final report.
I have also added my name to Amendment 3 on the basis that, at the very least, in deciding whether to prosecute, the DSP should have in the forefront of his mind whether a fair trial has been materially prejudiced by delay or by the quality of the investigation. I have in the past made submissions in court that a fair trial is impossible through delay, pre-trial publicity or matters of that sort, but never with success. The noble and learned Lord, Lord Hope, criticised Amendment 3 as too soft. I do not think so, if it is given a statutory formulation. It would be given weight as an important consideration for the DSP at the time of his decision whether to commence proceedings at all. I submitted earlier this afternoon that a presumption against prosecution is not the way forward. Whether a fair trial is possible should be an important consideration before the prosecution commences.

Baroness Goldie: My Lords, once again we have all been struck by the quality of the debate, which has penetrated issues that are legitimately at the heart of the Bill. Noble Lords who have raised issues related to the Bill are rightly seeking clarification and reassurance about what different components of the Bill mean, and particularly where the whole issue of investigations lies in relation to it.
I will begin with Amendment 3, moved by the noble and learned Lord, Lord Falconer of Thoroton. The Government’s intention with the measures that we have introduced in Part 1 of the Bill is to provide demonstrable reassurance to our service personnel and veterans. It is not only a worthy aspiration but a necessary one. It is a demonstrable reassurance in relation to the threat of legal proceedings arising from alleged events occurring many years earlier on operations overseas. This has meant balancing the need to introduce protective measures for service personnel and veterans and remaining compliant with our domestic and international obligations.
On the one hand, the measures set a high threshold for a prosecutor to determine that a case should be prosecuted, as well as ensuring that the adverse impact of overseas operations will be given particular weight in favour of the serviceperson or veteran; on the other hand, as I have previously said, the measures do not and cannot act as an amnesty or statute of limitations, do not fetter the prosecutor’s discretion in making a  decision to prosecute, and are compliant with international law. I believe that we have achieved this balance, this equilibrium, in the combination of Clause 2, the presumption, and Clause 3, the matters to be given particular weight. We are providing the additional protection that our service personnel and veterans so greatly deserve, while ensuring that in exceptional circumstances individuals can still be prosecuted for alleged offences.
Amendment 3, tabled by the noble Lord, Lord Tunnicliffe, and moved by the noble and learned Lord, Lord Falconer of Thoroton, would, in effect, replace the presumption against prosecution with a requirement that the prosecutor, when deciding whether or not to prosecute a case, should consider only whether the passage of time has materially prejudiced the prospective defendant’s chance of a fair trial. However you cut and dice that amendment, this is a much-diminished reassurance to our Armed Forces personnel from what is currently in the Bill. My noble friend Lord Lancaster of Kimbolton and the noble and learned Lord, Lord Hope of Craighead, offered helpful observations in that respect.
The amendment not only removes the high threshold of the presumption but seeks to replace it with an assessment of whether or not the passage of time would prejudice the chance of a fair trial. Almost certainly, such a criterion is likely already to be considered by the prosecutor when applying the existing evidential and public interest tests. The Bill also already addresses the potentially negative effects of the passage of time, by requiring a prosecutor to give particular weight to the public interest in finality, in Clause 3(2)(b).
We are not suggesting—I am grateful to the noble Baroness, Lady Chakrabarti, for acknowledging this—that service personnel or veterans have been subject to unfair trials. However, we are seeking to highlight not only the difficulties but the adverse impacts on our personnel of pursuing allegations of historical criminal offences with protracted and repeated investigations. Justice delayed is often justice denied, for defendants and victims.
As I said, I believe that Clauses 2 and 3 provide the appropriate balance between victims’ rights and access to justice on the one hand, and a fair and deserved level of protection for our service personnel and veterans on the other. Removing the presumption, as the amendment proposes, would remove this balance, with the diminished reassurance to our Armed Forces personnel. I therefore urge the noble and learned Lord to withdraw his amendment.
Amendment 5, tabled by the noble Lord, Lord Tunnicliffe, and the noble and gallant Lord, Lord Boyce, seeks to add an additional factor to Clause 3. Specifically, it aims to ensure that the quality and duration of relevant investigations are given weight by a prosecutor where this tends against prosecution. I can see that this addition is well intended, but it is not necessary, and I will endeavour to explain why.
At the point at which the prosecutor will be considering the factors in Clause 3, any investigations will most likely have been completed. The service police already  apply the evidence sufficiency test to determine whether a case should be referred to the prosecutor, so it is unlikely that a poorly run investigation would bring forward good enough evidence for the evidence sufficiency test to be met, and for the service police to determine that a case should be referred to the prosecutor. Even if the service police determine that the evidence sufficiency test has been met, the prosecutor will then apply the two-stage process: first, whether there is sufficient admissible evidence to establish a realistic prospect of conviction and, secondly, whether prosecution is in the public and service interest.
At this point, if there have been shortcomings in an investigation—for example, because of the complexity of the operational environment—evidence may be inadmissible due to the conditions in which it was gathered, or simply not available at all, and this may result in the prosecutor assessing that there is not a realistic prospect of conviction. While it is therefore reasonable to assume that a poorly run investigation is unlikely to meet the threshold for a prosecutor to determine that a case should be prosecuted, the same could equally be the case as a result of a comprehensive investigation, but where the evidence is simply not available or is deemed not to be sufficient.
As I appreciate the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Thomas of Gresford, will understand, this reflects the reality that an investigation on an overseas operation will inevitably be impacted by the operational context and the environment, and there are many reasons why the evidence, or the quality of the evidence required, may not be available and that delays may occur. This I why I submit that it is not simply a case of “good” or “bad” investigations. I think it is difficult to understand how a prosecutor could assess the quality of the investigation or whether the amount of time that it has taken for it to be completed is appropriate and then apply these assessments in practice.
I also ask noble Lords to recognise that all elements of the Armed Forces, including the service police, have come a long way since the early days of the Iraq conflict. Lessons have been learned. Processes, policies, training and education have all been updated to reflect the experiences of those early days and matters which have arisen since. We are continuing to work to secure assurance that our investigative capabilities are as good as they can be, and the commissioning of the review by Sir Richard Henriques is a clear commitment in this respect.
It is the Government’s view that Clause 3(2)(b) already addresses the issue of investigations in an appropriate way, in the context of the public interest in finality, and that a separate assessment of the adequacy of the investigation is neither appropriate nor required. In these circumstances, I would urge the noble and learned Lord, Lord Falconer of Thoroton, to withdraw the amendment.
Amendment 6, in the name of the noble and learned Lord, Lord Thomas of Cwmgiedd, also seeks to add an additional factor to Clause 3. More specifically, it aims to ensure that the standards and independence of relevant investigations are given particular weight by a relevant prosecutor where this tends against prosecution.
The noble and learned Lord, Lord Thomas of Cwmgiedd, said that our improvements in investigations are all in the future. With the greatest respect, I suggest that this is not the complete picture. As I have already said, all elements of the Armed Forces, including the service police, are continually improving the way in which they operate, so let me try to reassure the noble and learned Lord. At this point, I will also try to reassure the noble Lord, Lord Browne of Ladyton. He felt that my argument that the Bill could improve investigations was unconvincing, so I shall try again.
Let me be clear: I believe that investigations need to be thorough and robust, and there were flaws in the past. But there are two distinct issues here. The first is the investigations and what they find out, and the second is what a prosecutor does with the results of the investigation. I would suggest that these are different issues. I say to the noble Lord, Lord Browne of Ladyton, that it is the view of the Government that investigations have been and can still be improved, and, separately, that the unique position of the Armed Forces on overseas operations should be reflected in a clearer framework for the prosecution of historical allegations.
I will proceed with some of the improvements to investigations, because the noble Lord, Lord Thomas of Gresford, specifically posed questions on this. I have indicated some of the work that the service police have been doing, and that ongoing work has continued to increase the capability of the service police and to ensure that they are better placed to respond to future operations. The professionalism agenda on which the police have embarked includes but is not limited to: a greater alignment with civilian police training national standards, including the introduction of a national policing apprenticeship for all new service police entrants, and College of Policing accreditation via the professionalising in policing course; attachments to Home Office police forces to ensure skills currency; representation on the National Police Chiefs’ Council across the spectrum of strategic activity and sub-level working groups; refinement of service police doctrine to incorporate lessons learned from Iraq and Afghanistan; and, importantly, investment in technology, such as the introduction of body-worn cameras and protective mobility to enhance deployability. By way of example, in 2003 service police reports were still saved on floppy disks—who of us can even remember these?—in the desert, which is an indication of how much technology has changed in the intervening period.
In addition to these professional improvements, a duty to ensure the independence of the service police from the Armed Forces in relation to investigations was enshrined in law in 2011 with a new section in the Armed Forces Act 2006. This, and other changes implemented in the Armed Forces Act 2011, introduced significant changes to the relationship between the chain of command and the service police in respect of investigative decision-making, as well as strengthening the investigative independence of the service police.
Under Part 5 of the Armed Forces Act 2006, if commanding officers become aware of serious allegations or allegations of offences committed in specific prescribed circumstances, they are under a duty to make the service police aware. There are also obligations on the service police to consult the Director of Service Prosecutions  where a decision is taken not to refer in certain types of investigations. Where the investigation reveals sufficient evidence of a serious offence, the service police are obliged to refer the case to the prosecutors. The provost marshals of the service police have a legal duty to ensure that all investigations are carried out free from improper interference. Finally, Her Majesty’s inspectors of constabulary inspect and report to the Secretary of State on the independence and effectiveness of investigations carried out by the service police.
I have dealt with this at some length, and I apologise if it has made for tedious listening, but I felt it was important to try to reassure the contributors to the debate, because many good points were made. I think that these points were made because of a genuine apprehension of weaknesses in the system. I have tried to illustrate that the system has probably improved out of all recognition, and that is before we even consider what Sir Richard Henriques may come up with in his review. But the commissioning of the review is a clear commitment to continue to seek improvement in these matters. I say to the noble and learned Lord, Lord Thomas of Cwmgiedd, that many improvements have been made.
As with Amendment 5, it is difficult to understand how a prosecutor could assess either the standard of the investigation or whether the service police have acted independently of the chain of command and then apply these assessments in practice. I have not been persuaded that a separate assessment of the standard and independence of the investigation is either appropriate or required. I would therefore respectfully ask the noble and learned Lord not to press his amendment.
Amendment 17 seeks to introduce timelines for the progress of investigations. This amendment was instigated by the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Smith of Newnham. Again, I appreciate that the noble Lord and the noble Baroness are trying to be helpful, but this amendment, when dissected, raises issues which have to be examined. With the introduction of arbitrary and hard timelines for the progress of investigations, it seems to me that that does not take into account the wholly unique environment of an overseas operation and the challenges that this presents for investigations.
I stated previously that the Bill is not aimed at directly addressing service police investigations. These are subject to the review by Sir Richard Henriques. I am unclear why the noble Lord and the noble Baroness would wish to introduce such limitations on the investigative process. These are limitations which do not apply to service police investigations in the UK, nor to those conducted by civilian police forces. The challenges of conducting a robust and thorough investigation in a non-permissive and potentially kinetic environment are significant. As I said, they cannot be compared with the largely benign policing landscape of the UK, and nor should they have additional restrictions placed on them which are not faced by police investigations in the UK.
Current and future operations will probably see UK forces deploy at a smaller scale, with deployments potentially more remote and limited in duration. This will add even greater complexity to the operating environment  for the service police, where access to real-life support and force protection is not a given, and access to any potential crime scene is likely to be fleeting. The complexity of investigations, frustrated by remote locations, harsh geography and a non-permissive environment, are just some of the challenges, not the least of which are access to witnesses and the fact that our own injured personnel may need medical treatment before making statements.
So this poses the question: would we really be comfortable closing down the investigative timeline in a way that may fail to exculpate our own forces, or provide much-needed closure to the families of deceased personnel? If that were to happen, would we really want to risk the ICC determining that we were unwilling or unable to properly investigate alleged offences on overseas operations, and then stepping in to do so?
I think I have dealt with the main issues. I submit that these measures would simply undermine the balance and well-established relationship between the service police and the prosecutor—a relationship, I might add, which also exists between the civil police and the Crown Prosecution Service, without the need for a member of the judiciary to be involved.
I have laid out an array of significant difficulties which this amendment raises and which I believe are not easily resolved. In these circumstances, I ask the noble Lord and the noble Baroness not to press their amendment.
This part of the Bill has dealt with some meaty issues, and the Government Whip is presenting me with a notice that says “Time is coming up”. However, in the circumstances, I will do something that does not come to me naturally and will ignore the Government Whip, because I really want to deal with the important issues raised in Amendment 28.
Amendment 28 is again tabled by the noble and learned Lord, Lord Falconer of Thoroton, and the noble and gallant Lord, Lord Boyce. Once again, I can see why the noble Lords have sought to try to support this part of the Bill and to be helpful. The amendment would give a new power to judge advocates to restrict police investigations. It would require a judge advocate to determine whether new—and existing—evidence brought forward is sufficient to allow the reinvestigation of service personnel for alleged offences of which they have previously been acquitted, or in circumstances where an earlier investigation had been ceased.
The supporters of the amendment feel that it could deal with repeated investigations. The noble Lord, Lord Anderson of Ipswich, described graphically the character of protracted investigations. However, again, I question whether this new clause is necessary. I also have concerns that this new clause would result in some unfortunate and unintended consequences.
Where a person has been acquitted of an offence relating to conduct on overseas operations, it is assumed that this envisages a situation where a person has been acquitted at a court martial. But it could also apply to a matter which was heard at a summary hearing in front of a commanding officer, following on from an investigation which did not involve the police. It also applies where a previous determination has been made that an investigation into an offence should cease.
The difficulty is that an investigation is a hard thing to define in law. It starts when inquiries begin and its purpose is to determine whether what little information you start with is credible and to gather more information and evidence in support of that. The process of finding out whether evidence is compelling is the investigation.
That is why I have difficulties with how, following a decision to cease an investigation, it can be determined that no further investigation—whether new or a continuation of the earlier investigation—can be commenced unless some form of compelling new evidence becomes available. The only way the police can determine whether this new evidence is compelling is to carry out an investigation—which, according to the terms of the amendment, they would not be allowed to do. We are getting into a circular issue here.
The new clause also proposes that no further investigation into the alleged conduct may be carried out unless an allocated judge advocate determines that the totality of the evidence against an accused—which presumably has had to come from some sort of investigation which the police are not allowed to conduct—is sufficiently strong that there is a real possibility that it would support a conviction.
This amendment, however well intended, introduces unforeseen consequences and certainly introduces restrictions and potential limitations on investigations. The intervention of a judge in the process of the investigation could interfere with the discourse between prosecutor and investigator. That is an important relationship, because it ensures that prosecutors are in a position to make prosecutorial decisions based on information which can be gleaned only from thorough investigations. It would be undesirable to fetter this discourse by introducing a third party—even someone as venerable as a judge advocate—into the existing process.
I have listened to eloquent and erudite arguments in support of this amendment, and I undertake to look again at the comments made in case I have misunderstood the arguments or have misapplied my own interpretation of what the amendment means. I shall look closely at the contributions which have been offered. In the meantime, I ask the noble and learned Lord to withdraw the amendment.

Lord Falconer of Thoroton: I am obliged for the detailed and very careful reply that the noble Baroness, Lady Goldie, gave, and I am particularly grateful to her for overriding instructions—that is the wrong word—given to her by the Government Whips. I am also appreciative of the very rich debate we have just had. I will draw attention to three particular interventions. First, my noble friend Lord Browne of Ladyton expressed the view that everybody subsequently expressed, including the Minister, that it is the lengthy investigations that we are trying to deal with here. Secondly, the noble and gallant Lord, Lord Boyce, made the point that the real evil here is investigation and reinvestigation; and, thirdly, my noble friend Lady Chakrabarti said, “Look, this presumption that the Government are relying on about exceptionality will not provide much protection when you see the low numbers of prosecutions that have been given.”
I earnestly ask the noble Baroness, Lady Goldie, to consider carefully the points that have been made in the course of this debate by everybody. I am increasingly concerned about the presumption. It does not do the trick, because it does not provide the reassurance that is required. It raises very problematic questions of international law, it does not deal with very many cases, and it risks bringing in the ICC. So it will not give the reassurance that the noble Baroness, Lady Goldie, and the noble Lord, Lord Lancaster, are looking for. There were signs that the noble Lord, Lord Lancaster, in supporting Amendment 28, might be beginning to support some of the proposals that we are making.
So I earnestly ask the noble Baroness to think again about this, because we are united in what we are trying to achieve, and the presumption in Clause 2 does not do it. Of course I beg leave to withdraw my amendment, but we will certainly return to these issues on Report, because this is the heart of the Bill.
Amendment 3 withdrawn.
Clause 2 agreed.

Baroness Fookes: We come to the group beginning with Amendment 4. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.

  
Clause 3: Matters to be given particular weight

Amendment 4

Baroness Massey of Darwen: Moved by Baroness Massey of Darwen
4: Clause 3, page 2, line 23, leave out paragraph (a)Member’s explanatory statementThis amendment and the other amendments to Clause 3 in the name of Baroness Massey would delete the requirement to give “particular weight” in any prosecution decision after 5 years to a person having an impaired ability to exercise self-control or to exercise sound judgement whilst being deployed on operations overseas.

Baroness Massey of Darwen: My Lords, again I am speaking as a member of the Joint Committee on Human Rights, and the amendments are again based on the views of expert witnesses who contributed to its report. I shall speak to Amendments 4, 7 and 8. They relate to Clause 3 and would delete the requirement to give “particular weight” in any prosecution decision after five years to a person having an impaired ability to exercise self-control or to exercise sound judgment while being deployed on operations overseas. The amendments would omit Clause 3(2)(a), (3) and (4). Their concern is similar to concerns in Clause 11 in relation to limitations on bringing proceedings under the Human Rights Act.
The Joint Committee on Human Rights report on the Bill explains in chapter 3 that:
“In domestic law the prosecution would take into account a person’s mental health as part of the decision as to whether a prosecution is in the public interest—and this is a factor that would currently already apply to prosecutions of members of the Armed Forces. Moreover, a person who is not fit to plead at the time of trial would not be assessed for the … mental element … of an offence. A defendant could raise a plea of insanity as a defence if at the time of the offence their mental condition was so impaired that they were unable to understand the act they were doing or that it was wrong.”
Paragraph 77 of the report states:
“The MoD should not be sending Armed Forces personnel on deployment who are unable to make ‘sound judgements’, who cannot ‘exercise self-control’ or whose mental health is so severely affected that the MoD does not consider that they should be responsible for their criminal actions. Moreover, if a member of the Armed Forces becomes unable to make ‘sound judgements’, can no longer ‘exercise self-control’ or where there are significant concerns about their mental health, then there should be adequate systems in place to relieve that person of their operational duties, remove them from the conflict situation (where appropriate) and give them the support that they need.”
The Joint Committee on Human Rights expressed concern at paragraph 76 that,
“the Bill does not provide any incentives for the military hierarchy to ensure that members of the Armed Forces who are mentally unfit to be deployed get removed from operational duties and given the support that they need. Instead it includes an impediment to prosecuting a person whose judgement may be impaired, who lacks adequate self-control or whose mental health may have been affected”.
Service personnel are trained to deal with complex situations, and there are undoubtedly high-stress situations in combat. Due account must be taken of these complexities as part of any decision on whether to bring a prosecution. However, it should not be part of a statutory barrier to bringing prosecutions when they are in the public interest.
The Joint Committee on Human Rights does not consider that there is any solid basis for including additional requirements that could risk granting de facto impunity to those who have committed crimes on the grounds that the perpetrator lacked sound judgment or could not exercise self-control beyond the threshold already established in criminal law. For that reason, the committee recommends deleting Clause 3(2)(a), (3) and (4). I beg to move.

Lord Mackay of Clashfern: My Lords, the question is when this condition intervenes. It would be one thing to send a person over to a foreign assignment with that condition at that time, but there must be a risk that the impetus of foreign work in certain conditions would bring about these conditions in the person in question. There is therefore a real question as to whether or not the matter of the investigation discloses that the person in question became subject to that condition as a result of his being in the operation abroad. It does not necessarily mean that a person is sent into the work with that kind of condition. I would have thought that that distinction was quite important since the idea of the clause seems to be that they look to see whether or not the conditions under which the military man or woman has been working have produced these results, so far as their mental health is concerned.

Baroness Chakrabarti: My Lords, in principle I am quite concerned about overprescribing matters to be taken into account, because I would want all prosecutors in relation to all suspects to have a very broad discretion to take into account all sorts of adverse factors in fairness to a potential accused. None the less the Minister, who is the most gifted and reasonable advocate, says that part of the purpose of the Bill is reassurance—presumably even if that is a psychological comfort rather than an actual legal one, because I am sure that all relevant factors are currently available.
The Minister also talks about balance and equilibrium. In that spirit I am concerned, given that it is said that prosecution after five years is now going to be wholly exceptional, that no factors are listed in the Bill that militate towards that exceptional prosecution. Why not? Surely that would be the balanced thing to do in the spirit of equilibrium. Why is there no mention here of issues such as covert operations, witnesses and indeed victims of war crimes potentially having been incarcerated, or the crime being particularly undetectable because of collusion by people within an operational cohort or even at a higher level? It seems strange as a matter of good law to have put in the factors that militate against prosecution, which we are told is to be exceptional, as two parts of the triple lock, but to have given no guidance at all as to the exceptional circumstances. With that in mind, I can only agree with the Joint Committee on Human Rights, which is such an important committee for both Houses in performing their role in relation to human rights, and with the remarks of my noble friend Lady Massey.

Lord Lancaster of Kimbolton: I am pleased to follow the noble Baroness. I am grateful to her for, dare I say, reaching out during the last group of amendments and attempting to reach some common ground. I think we are seeking to achieve similar things, albeit coming from very different perspectives, since I was a practitioner, as it were, in the past. I looked very carefully at the amendment and, for fear of being damned with faint praise by the noble Lord, Lord Thomas, there are aspects that I absolutely understand.
As ever, though, the problem has just been hit on the head by my noble and learned friend Lord Mackay, and that is the application. It is one thing to say that people who are suffering should not be put into a war zone, and that is absolutely right. However, the application matters when you are already in a war zone—a distant FOB—and within a small group with no ability to blow a whistle and stop the war in order to be withdrawn from the situation, along with the gradual deterioration of the condition over a period of time. This will not necessarily be seen by those around you because they are suffering similar things. It is not quite as easy to put into practical application during operations, which is why we need to be careful.
When I was training to become a bomb disposal officer, I knew absolutely what I was letting myself in for. Having served on operations in Bosnia, Kosovo and Afghanistan, most recently in Afghanistan while I was a Member of Parliament, it is not always possible to see these deteriorations. It is important to realise that a medical or psychiatric condition may or may not be recognised at the time. Prosecutors are already required to have regard to any significant mental or physical ill-health or disability as in some circumstances this may mean that it is less likely that a prosecution is required. Clause 3 simply seeks to ensure that such considerations are put on to a statutory footing within the unique context of an overseas operation.
I recognise that I come at this from a different angle and I can see the precise way in which noble and noble and learned Lords are looking at the Bill, but I will go back to the comments I made earlier. This is also  about sending a message. By putting this on to a statutory footing in the Bill, it will send a clear message to members of our Armed Forces that the Government and Parliament understand that we are asking them to do extraordinary things in extraordinary circumstances. This would be a recognition of that.

Lord Dubs: My Lords, I also speak as a member of the Joint Committee on Human Rights which produced the report on this Bill, and it is what is in that report which will influence the brief comments that I shall make. I support what my noble friend Lady Massey has said.
I accept fully that it is most unlikely that the Armed Forces would send someone abroad who was not capable of making sound judgments. The issue, as evidenced by the comments of the noble Lord, Lord Lancaster, just now and the noble and learned Lord, Lord Mackay, is whether people in a war zone, in very difficult and dangerous circumstances, might develop a condition where their judgment was not as sound as when they were sent there. However, my understanding is that soundness of judgment is something that underlies all prosecutorial decisions in the criminal law of this country anyway, so I am not clear as to why we should treat soldiers differently from the way that the law normally works.
I can do no better than to quote from paragraph 79 of the JCHR report:
“The mental health of a defendant is already borne in mind as part of the prosecutorial decision as to whether it is in the public interest to bring a prosecution. We do not consider that there is any solid basis for including an additional requirement that could risk granting de facto impunity to those who have committed crimes on the grounds that the perpetrator lacked sound judgement, or could not exercise self-control, beyond the threshold already established in criminal law. For this reason, we would recommend deleting clause 3(2)(a), 3(3) and 3(4).”
The key words in this are
“beyond the threshold already established in criminal law.”
If we believe that the threshold in our criminal law is adequate, we do not need this extra provision. That is the basis on which I will support what my noble friend Lady Massey said at the beginning of this debate.

Baroness Fookes: The noble Baroness, Lady Smith of Newnham, has withdrawn, so I call the next speaker.

Lord Tunnicliffe: My Lords, we stand foursquare behind our troops and we want to work with the Government to build the broadest consensus possible on the Bill—tailored to supporting our Armed Forces members and safeguarding human rights. The amendments in this group aim to probe an understanding of what particular weight a prosecutor must give when considering a prosecutorial decision related to alleged conduct during overseas operations. As we have heard, Amendment 4 would remove the requirement on a prosecutor to consider the adverse effect on the person of the conditions they were exposed to. Amendment 7 would remove the requirement on the prosecutor to consider any exceptional demands and stresses, while Amendment 8 would remove the definition of any adverse effects, including making sound judgments or considering mental health.
The amendments are based on concerns raised by the Joint Committee on Human Rights which stated:
“We do not consider that there is any solid basis for including additional requirements that could risk granting de facto impunity.”
If mental health is already considered by prosecutors, as indicated by the Joint Committee on Human Rights, why do the Government believe it necessary to include it in this Bill? As the Minister will see, these requirements have not been considered by prosecutors before. Also, as my noble and learned friend Lord Falconer asked in the previous group, why have the Government not included a requirement for prosecutors to give weight to the quality and duration of relevant investigations? The Armed Forces Judge Advocate, General Jeff Blackett, has said:
“Clause 3 is engaged after five years. It seems bizarre to me that in deciding whether to prosecute, you have a post-five-year test, but not a pre-five-year test.”
Why have the Government drafted Clause 3 in this way? What independent legal advice was given in relation to the drafting of the clause? Vexatious claims are a serious problem, but we fear that the focus on a presumption against prosecution misses the point: it is the current cycle of investigations. We can see that from how the Government have failed to give particular weight to the quality and duration of the investigations in this clause.

Baroness Goldie: My Lords, once again, I thank the noble Baroness, Lady Massey, and all other contributors to the debate for a fertile discussion. At the risk of sounding repetitive, I shall probably repeat some of the themes to which I have already referred.
In relation to these amendments, I would comment that we ask a huge amount of our service personnel. We send them to undertake high-threat, high-risk operations in defence of our country and its people. They do their duty in the clear knowledge that they may be injured, maimed or even killed. That is the unique nature of their job and is what sets them apart from the rest of us. The Government believe therefore that it is absolutely right and reasonable to require that in return we ensure that a prosecutor, when coming to a decision to prosecute, must give particular weight to the unique circumstances of overseas operations and the adverse impact that these may have on a service person’s capacity to make sound judgments and on their mental health at the time of an alleged offence. This will be in addition to considering the existing evidential sufficiency and public interest test.
Let me make it clear that this is intended not to excuse bad behaviour by service personnel but to ensure that prosecutors give full recognition to the significant difference in the circumstances surrounding an alleged offence committed on operations overseas as compared, for example, with situations where the alleged criminal conduct occurs in a domestic, civilian setting.
Although differing views to the attitude of the Government have perhaps been expressed in the debate, as far as I could ascertain, contributors acknowledged that the conditions referred to in the Bill could indeed be personal impairments that might attach to Armed Forces personnel in the course of their operations overseas. That is why the prosecutor must consider the presumption against prosecution in Clause 2 and  determine whether the case meets the exceptional threshold. The prosecutor must also, as required by Clause 3, give particular weight to matters that may effectively tip the balance in favour of not prosecuting.
The noble Baroness, Lady Chakrabarti, asked: what is exceptional? First, we have to look at the environment of overseas operations, which creates a unique background for our Armed Forces. That is the raison d’être for the Bill and the exceptionality is then to be determined by the prosecutor. That is why I suggested earlier that Clauses 1 to 7 are interwoven in the Bill. If you remove one of them, you weaken the rest. I suggest that Clause 3 reflects the filters that are to be applied—the final filter being the consent of the Attorney-General.
There has been a lot of discussion during the passage of the Bill about concerns over the impact on our personnel of repeated scrutiny and the mental burden placed on them by the threat of criminal prosecution occurring long after the events in question, in particular where there is no compelling new evidence to be considered. Significantly, as we saw in the responses to our public consultation in 2019, many service personnel were concerned about the ability of prosecutors and others in the justice system to understand the operational context in which an alleged offence occurred, and to adequately reflect that in determining the public interest. My noble friend Lord Lancaster of Kimbolton described poignantly the sort of environment in which we expect our Armed Forces personnel to operate.
I say to the noble Lord, Lord Dubs, that we fully accept that prosecutors may already take these matters into account, including mental health considerations. However, making them a statutory requirement by putting them into the Bill provides greater certainty and reassurance for our service personnel that the unique context of overseas operations will be given particular and appropriate weight in the prosecutor’s deliberations.
I have also noted the suggestion by some that Clause 3 will grant de facto impunity to individuals who have been accused of committing criminal offences. I wish to repeat that the application of Clause 3, alongside all the other considerations, still leaves the prosecutor with discretion to determine that a case should be prosecuted, even when there is no compelling new evidence. My concern is that these amendments would effectively remove one of the matters to be given particular weight and undermine that reassurance to our service personnel that the operational context and the adverse effect that it can have on them will be taken into account by the prosecutor. That would be an unfortunate message for this Committee to send and, in those circumstances, I urge the noble Baroness, Lady Massey, to withdraw her amendment.

Lord Russell of Liverpool: I have received no requests to speak after the Minister, so I call the mover, the noble Baroness, Lady Massey of Darwen.

Baroness Massey of Darwen: My Lords, again I thank the Minister for her concern and detailed response. Many wise comments and questions have  been made. I appreciate what the noble and learned Lord, Lord Mackay of Clashfern, is saying about lack of sound judgment developing under stress in adverse conditions in conflict situations. The point that I wanted to make was that I agreed that that would happen, but part of what I was saying was that people needed support to come to terms with that, which could take a very long time.
My noble friends Lord Dubs and Lord Tunnicliffe gave a response. The question that my noble friend Lady Chakrabarti asked on why Clause 3 has been drafted in this way is important. In response to the Minister’s final comments, I should like to read what she said. It is difficult to be persuaded that prosecutors would find it difficult to understand the condition and environment in which service personnel are working. It is fairly obvious to most people that those circumstances are difficult. However, I should like to read what she said, and read the full debate, and discuss with colleagues what action we want to take next. In the meantime, I beg leave to withdraw the amendment.
Amendment 4 withdrawn.
Amendments 5 to 8 not moved.
Clause 3 agreed.
Clause 4 agreed.

  
Clause 5: Requirement of consent to prosecute
  

Amendment 9 not moved.

Lord Russell of Liverpool: We now come to the group beginning with Amendment 10. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.

Amendment 10

Lord Falconer of Thoroton: Moved by Lord Falconer of Thoroton
10: Clause 5, page 3, line 29, at end insert—“(3A) Where the consent of the Attorney General is sought under subsection (2) or (3), the Attorney General must prepare a report containing his or her reasons for granting or withholding consent, as the case may be, with reference to sections 1 to 3 of this Act, and must lay a copy of this report before each House of Parliament.”Member’s explanatory statementThis amendment requires the Attorney General to lay out their evidence and assessment as to why they granted or refused consent to prosecute.

Lord Falconer of Thoroton: There are three amendments in this group, Amendments 10, 11 and 12, which deal with the question of the need for the consent of the Attorney-General before a prosecution covered by the presumption goes ahead. This is an important but quite short series of issues; in effect, the Bill is adding in the consent of the Attorney-General as the third part of the triple lock, before prosecution is brought against military personnel in respect of overseas operations. Therefore, the consent will be required only when a prosecutor has decided that a  case where over five years have gone by is exceptional, and the Attorney-General’s consent, or lack of it, will be of real significance only when he or she does not give it.
The consequences of the Attorney-General not giving consent are, in my view, threefold. First, it may well give rise to suggestions that the issue has been politicised. Secondly, the Attorney-General is very frequently involved in making or overriding decisions made in relation to operations overseas. For example, the Attorney-General will often give instruction and advice in relation to conditions of detention. It is worth reading the evidence given by Nicholas Mercer to the Joint Committee on Human Rights, where he described the involvement of the Attorney General’s Office in decisions that he had been involved in as a lawyer when, in foreign theatres of war, the use of force was involved. As such, my second point is that the Attorney-General may well have been involved in decisions that affect that theatre of war. From my own experience as Solicitor-General, I can tell you that that was indeed the case.
My third point is that, if the Attorney-General is going to override the prosecutor’s view that a prosecution should be brought, he will inevitably be increasing the risk that the matter is referred to or taken up by the ICC—because it will see a case where the prosecutor thinks that the prosecution has an over-50% chance of success and the public interest allows it, yet the Attorney-General has not allowed it to go ahead. Fourthly, if the Attorney-General is overriding the view of the prosecutor, which is the only time when this would be significant, questions will arise as to whether that puts the United Kingdom in breach of a whole range of international obligations—the Geneva convention, the United Nations Convention against Torture, Articles 2 and 3 of the human rights convention and the Rome convention, which is the International Criminal Court statute, in effect.
As such, our amendments first require the Attorney-General to give “reasons” as to whether he is giving or withholding consent, and laying them before Parliament. Secondly, Amendment 11 proposes that he must consider whether refusing consent will
“increase the likelihood of the International Criminal Court exercising its own competence”.
Thirdly, Amendment 12 proposes that he must consider whether his refusing consent would constitute a “breach of international law”. These amendments are laid by way of probing. We have real concerns about this provision and that it will not provide added protection but will instead give rise to very significant legal risks. I beg to move.

Lord Faulks: My Lords, these amendments seek to make the Attorney-General and the Advocate-General for Northern Ireland more accountable in relation to what we might call “late prosecutions”, and in particular more accountable to Parliament. The obligation in Amendment 10 provides for a report to Parliament in the event of either the granting or withholding of consent for such a prosecution. I accept what the noble and learned Lord, Lord Falconer, said—that there may be more interest in circumstances where the Attorney-General does not consent to a prosecution.
Amendment 11 provides that the Attorney-General should give consent if there is an increased likelihood of ICC involvement. In Amendment 12 he or she must give consent if not doing so would lead to a breach of international law. Normally, advice from law officers to the Government is not disclosed to Parliament—nor even is the fact that advice has been sought—so to some extent these amendments are a bit of a novelty.
I have considered a number of lawyers’ views about whether the courts, as opposed to Parliament, could be involved in reviewing a decision by the Attorney-General either to consent to a prosecution or not to consent. The balance of view seems to be a cautious yes, although the courts would be expected to exercise a so-called “light-touch review”. In other words, it is unlikely that the courts would quash a decision of this sort.
I was most interested to hear what the noble and learned Lord said about these amendments because, on reading them, I was not quite sure what would be in the report proposed for receipt by Parliament. What would the law officer have to say? Would he or she simply cite public interest, gravity of offences and reasonable prospect of conviction in the event of a decision to prosecute, and presumably the opposite in the event of a decision not to prosecute? I suppose there might be some reference to the length of time between the acts concerned and the decision to prosecute. Of course, he or she would not be expected to give detailed reasons on the strengths of a particular witness or worries about one aspect of the evidence, or something of that sort. I am not sure what Parliament is going to do with that information, but I accept that accountability to Parliament is generally desirable.
As to the obligation under Amendment 11 in relation to the ICC, my understanding of the ICC—and I have attended one of its conferences in Rome—is that it is a court devoted to the macro rather than the micro, as I said when referring to the evidence of Major Campbell. It is also concerned mostly with offences at a high level.
Such prosecutions are often quasi-political—and I do not mean that in a pejorative sense. I recall that the perceived political element of the court was such that a number of countries walked out of the conference in Rome in the first few minutes as a protest at the alleged political element. Of course, the Rome statute is one to which the United States of America is not a signatory.
In one sense, the failure to prosecute or a decision not to prosecute by the Attorney-General must mean that there is an increased likelihood of ICC involvement, although I am not sure how that can be assessed. I entirely support our involvement with the ICC, but there are often complex reasons, including the availability of resources, which determine whether or not there are prosecutions. Our general support for the ICC as an institution should not be diluted in any way, but I am not sure that fear of ICC involvement should mean that the Attorney-General cannot come to the conclusion he or she thinks appropriate in these circumstances.
Similarly, the question of a putative breach of international law seems to me to be rather superfluous. There is an obligation, as I understand it, on the part of the law officers, as Ministers, to comply with the  Ministerial Code. That obligation includes an obligation to obey the law, including international law. I do not want to revisit the difficult territory covered by the internal market Bill, but my understanding of the Ministerial Code, and I am on record as saying as much in your Lordships’ House, is that the obligation includes international as well as domestic law—although sometimes international law may not be as easily ascertainable—so I am not currently aware of the need for this extra obligation.
I acknowledge that these amendments are essentially probing, so that Parliament can understand better the process by which the Attorney-General would be involved in so-called late prosecutions. I share the interest of the noble and learned Lord in how the process might work generally, but I am not for the moment persuaded that any of these amendments is either appropriate or necessary.
Finally, I am uneasy about the alleged political component of the Attorney-General’s involvement. I think the role of the Attorney-General in this sort of circumstance is pre-eminently not a political one, but it is ironic that the involvement of Parliament in some way that is envisaged by these amendments could, in fact, run the risk of some important boundaries being crossed.

Lord Russell of Liverpool: The noble and learned Lord, Lord Morris of Aberavon, has withdrawn from this group, so I call the noble Baroness, Lady Jones of Moulsecoomb.

Baroness Jones of Moulsecoomb: My Lords, that was quite interesting, actually, because of course these amendments are trying to create some sort of accountability for the Attorney-General. I thought the noble Lord, Lord Faulks, was going to say something about the Attorney-General being rather more political than in the past, because of course the office of Attorney-General has been sadly undermined in recent years, particularly last year with the Attorney-General’s quick defence of Dominic Cummings’ unlawful behaviour. That was, I fear, just one example, and the fact that she then so quickly rowed back from her position to a position of it being only her political decision and not a legal opinion shows how easy it is for an Attorney-General to step over that increasingly faint line. In that, I think that she mistakenly excused illegality in the name of political expediency. We, of course, cannot become complicit in that, so I was extremely pleased to sign the shadow Attorney-General’s Amendments 10, 11 and 12.
I am concerned that this triple lock in the Bill can actually lock justice out. Even if the power of justice is strong enough to overcome the first two locks, we have to trust the Attorney-General to make the right decision on the third lock, which of course would be very difficult. The Attorney-General therefore has to publish their reasons when making decisions, because these decisions should be made according to normal standards of administrative propriety and should rightly be subject to judicial review. Where the reasons for the decisions are irrational, unlawful or irrelevant, they should be able to be overturned. Where the decision is purely  politically motivated and has no foundation in facts, the law or the interests of justice, equally it should be overturned. These amendments are essential to ensure that this is the case.
Such important decisions as those envisaged in the Bill must never be made on a whim or be purely political. Justice has to be done and be seen to be done. I would just like to add that various noble Lords have suggested that some things are impossible to understand if you have not experienced warfare or action of that kind. Of course, that is absolutely true, but we are not talking about a lack of sympathy for service personnel; we are talking about criminal acts. That is the basis of what this law is about; it is not to do with whether we have sympathy or not, it is about criminal acts, and it is important to remember that.

Baroness Chakrabarti: My Lords, I am grateful to my noble and learned friend Lord Falconer and to the noble Baronesses, Lady D’Souza and Lady Jones, from whom we have just heard, for tabling these amendments. They have cemented in my mind concerns that I expressed at Second Reading about the role of the Attorney-General as the third lock in the architecture of this Bill.
In response to comments made by the noble and gallant Lord, Lord Stirrup, about how, if it is such a problem, we have a problem with the role of the Attorney-General in the constitution per se, I would say not quite. We know that the Attorney-General wears different hats—sometimes legal adviser to the Government and sometimes to Parliament—and sometimes acts in a separate role in relation to the public interest. Those hats are capable of being worn at different times. No doubt it takes a bit of skill to get the balance right, but in normal, civilian prosecutions, I suggest that an Attorney-General is very unlikely to have been giving legal advice on, for example, the investigative process; they would be very unlikely to have given advice directly to the police on the search that gave rise to the prosecution.
This is not the case in war and conflict, where the Attorney-General, as legal adviser to the Government, has undoubtedly been involved in the rules of engagement; they have quite possibly given very detailed advice on those rules and, as my noble and learned friend said, on matters concerning detention and so on. To make potentially the same person who advised on the legality of an operation the third lock on whether alleged criminality should be prosecuted seems to me unlikely to give confidence—the word “reassurance” has been used a lot—to anybody, whether that be civilian members of the public or military personnel. After all, this could be an Attorney-General who advised on the operation or one from a party that was very much opposed to the operation before it came into government. I have real concerns about the politicising of these prosecutions. One has only to think about the controversies in recent conflicts around the world to see that potential damage to public confidence, including among members of the Armed Forces on the front line and their families.
If the noble Lord, Lord Faulks, will forgive me a quick word, there was a little having of cake and eating it in his remarks. He referred—I do not think as  a criticism—to the ICC as quasi-political. Given these various hats, someone might well say that of the senior law officer involved in these matters who sits in or comes to Cabinet, including war Cabinets. In terms of accountability, to give this role to the Attorney-General is to give it to a political person who is appointed directly by the Prime Minister—quite possibly, as I say, the Prime Minister who authorised an operation—and for that all to be in the shadows. The Attorney-General’s original advice on the legality of the conflict and perhaps specific operations is currently in the shadows and now the Attorney-General’s veto of the independent prosecutor’s decision will quite possibly be in the shadows as well. That is highly problematic.
I am grateful for these amendments, which I think are probing. In any event, I think the Attorney-General should not be involved in this way at all. It seriously risks politicising already very delicate matters.

Lord Lancaster of Kimbolton: It is a great pleasure to follow the noble Baroness. I am particularly interested in her point about the Attorney-General not only offering advice on the potential conflict but being put in this position as well.
These amendments firmly caught my eye. The noble and learned Lord, Lord Falconer, outlined in his opening comments some of the challenges of overseas operations in a military context and politicisation—although in my mind all conflicts are political in one form or another. I immediately looked to see what historical examples there were of advice being published by the Attorney-General. There are not many. If we were to continue the theme of overseas operations and look back to probably the most controversial one of recent years—from 2003—the Attorney-General’s advice was certainly not published for that. Nor, I understand—though I am happy to be corrected—was it even given to Cabinet at the time. It is worth remembering how times change. There now seems to be an eagerness to publish the advice of the Attorney-General that was not there in 2003.
My instinct is that giving reasons goes against the grain of the constitutional principle regarding law officers’ advice: law officers do not confirm the facts or publish their legal advice or principles. I think that that is an important principle that enables frank advice to be given. If we accept that, an exception would create a slippery slope that could extend to other areas. There is also the reality that the sorts of information that the reasoning would be based on could have security implications, so should not be disclosed and would largely have to be omitted anyway. Lastly—I am no expert and this is a genuine question for noble and learned Lords in the House—I think that a judicial review, based on ordinary public law grounds, would surely be a sufficient check on decisions such as these.

Lord Thomas of Gresford: My Lords, the role of the Attorney-General in giving consent to a prosecution has been much discussed in the past. Following on from the remarks of the noble Lord, Lord Lancaster, I note that the Law Commission reported in 1998, and the noble and learned Baroness, Lady Scotland, when she was Attorney-General, conducted a consultation following the controversy  over the legality of the Iraq war. The precise result of that consultation is not clear. I am interested in the suggestion made by the noble Baroness, Lady Chakrabarti, that the role requires a fresh review; I agree with that.
In the context of this Bill, it is a simple question: in what circumstances is it appropriate for the Attorney-General to second-guess the decision of either the Director of Public Prosecutions or, in this proposal, the Director of Service Prosecutions? The noble Baroness, Lady Chakrabarti, also made an important point by referring to the conflict of interest that would arise if the Attorney-General has advised on the conduct or legality of an operation, or on the treatment of prisoners, and the issue is, for example, the way in which prisoners have been treated.
I remember that Lieutenant-Colonel Nick Mercer, when he was the senior legal adviser to the group in Iraq, advised that the way in which prisoners who had been taken were being treated—they were made to kneel with a sack over their head and their hands bound behind their back—was a breach of the European convention. He was howled down by the Ministry of Defence for voicing such an outrageous view—one that was subsequently upheld in the European Court of Human Rights.
If the presumption against prosecution survives, the DSP starts with a curb on his discretion, as we have discussed. If he thinks that the circumstances of a case oblige him to ignore the presumption against prosecution, his decision will be based on his judgment, first, whether there is sufficient evidence on a balance of probabilities to result in a conviction and, secondly, whether it is in the public or service interest to prosecute. If Amendment 3 were to be successful in any form, he would also have to take an overall decision on whether the possibility of a fair trial had been compromised by delay.
So where does the Attorney-General come in? Governments are quick to deny in the reports to which I have referred that there is any political element in their judgment where prosecutions are concerned. Sir Elwyn Jones, whose exercise of the unusual function of the Attorney-General in prosecuting in court—in the Moors murders trial in Chester—I observed, and who was later Lord Chancellor, wrote in 1969:
“The Attorney-General, when he is acting in political matters, is a highly political animal entitled to engage in contentious politics … But the basic requirement of our constitution is that however much of a political animal he may be when he is dealing with political matters, he must not allow political considerations to affect his actions in those matters in which he has to act in an impartial and even quasi-judicial way.”
However, as the noble and learned Lord, Lord Falconer, has pointed out, the decision of the Attorney-General, following that of the Director of Service Prosecutions who has satisfied himself that the presumption does not apply and that he must go ahead, would be seen to be political—what else could it be? The noble Baroness, Lady Jones, suggested that it be subject to judicial review. A victim of a war crime might well wish to review the decision and to seek damages or compensation.
Blackstone suggested in the 18th century that, broadly
“the Attorney’s consent is required where issues of public policy, national security or relations with other countries may affect the decision whether to prosecute”.
I do not consider that the prosecution of a British soldier for a serious crime comes under any of those three traditional common-law headings. What then is the Attorney-General doing in this Bill? Perhaps the Minister would explain.
Of course, the amendments also raise the interesting question of the publication of the Attorney-General’s reasons. The noble Lord, Lord Faulks, said that that would be a “novelty”, but he suggested that it would not be a political decision. Surely the reasons that the Attorney-General would give would be a question of policy rather than an assessment of the evidence which ran contra to the view that had been taken by the Director of Service Prosecutions. We saw last week in Scotland that it took tartan pincers to extract the advice given to the First Minister, even though it largely supported her position.
The constitutional theory is that the Attorney-General is accountable to Parliament for his own decisions and for the decisions of the DSP, but obviously if Parliament does not know what his reasoning is, including any cautions or qualifications he may have given to his advice, he cannot be held accountable for it.
I am very pleased to see that this suggestion is that of the shadow Attorney-General and it may be that, at last, we can see the light. It required a leak to the press to establish that the advice of the former Attorney-General, Sir Geoffrey Cox QC, to the current Prime Minister was that it was legal to prorogue Parliament in the cavalier way in which he did. As for the current admitted breaches of international law over the trade agreement with the European Union, we have not heard a squeak of the advice given by his successor.
We support these amendments in the hope that the Government will explain the need for a triple lock on a prosecution decision and whether the Attorney-General’s decision would depend on the numbers demonstrating in Parliament Square.

Baroness Goldie: My Lords, this has been perhaps a narrower debate in relation to interesting legal issues but none the less, once again, productive and fertile. I realise that these amendments are the product of the noble and learned Lord, Lord Thoroton, who has applied his considerable legal gifts to their drafting.
As has been explained, Amendments 10, 11 and 12 to Clause 5 seek to place a requirement on the Attorney-General to report to Parliament with the reasons for granting or withholding consent. The requirement in Clause 5 is that the consent of the Attorney-General for England and Wales, or the Advocate-General for Northern Ireland, has to be given before a case of an alleged offence committed by a serviceperson more than five years earlier on an overseas operation can proceed to prosecution. The noble Lord, Lord Thomas of Gresford, asked what the Attorney-General was doing in this Bill. We have introduced the consent function because it is important for service personnel and veterans to be confident that their case will be considered with care at the highest levels of our justice system.
The Attorney-General is left to discharge that obligation independently. As the Committee is aware, requiring the consent of the Attorney-General for a  prosecution is not unusual. She already has numerous other consent functions, including for the institution of all prosecutions for war crimes offences under the International Criminal Court Act 2001—nor does it mean that the Government have any role to play in a decision on consent. It is a constitutional principle that, when taking a decision on whether to consent to a prosecution, the Attorney-General acts quasi-judicially and independently of government, applying the well-established prosecution principles of evidential sufficiency and public interest. I seem to remember that on Second Reading my noble friend Lord Faulks articulated that position very eloquently, and I think that it is generally understood.
We feel that it is not appropriate for the Attorney-General to comment on any individual or ongoing investigation or prosecution. I am aware of no statutory requirement anywhere else for the Attorney-General to report in relation to individual casework decisions. We do not believe, therefore, that it would be appropriate to introduce such a requirement in the Bill. As I have said elsewhere, preserving the independence and discretion of the prosecutor is vital to the Part 1 measures. Without this, we cannot ensure that cases are treated fairly, nor can we prevent the ICC from stepping in. Adding a measure to the Bill that would require the Attorney-General to make a public statement before Parliament about specific prosecutions would quite simply interfere with that discretion. That would be an unusual and, I suggest, unwise innovation. Interestingly, critics of the Bill have expressed concern that giving the Attorney-General a role in Part 1 risks introducing politics into what should be a criminal justice process. Indeed, the noble Baronesses, Lady Jones of Moulsecoomb and Lady Chakrabarti, voiced these concerns. We do not agree that this is true for the Bill as drafted, but I pose the question: surely these amendments risk that precise outcome. Certainly my noble friend Lord Faulks confirmed that apprehension.
Amendments 11 and 12 would require the Attorney-General to make a prediction about whether the International Criminal Court will exercise its competence in a particular case, make a judgment about whether a prosecution would
“lead to a breach of international law”,
and then compel her to act in a certain way. I think that even the noble and learned Lord, Lord Falconer of Thoroton, would agree that both these amendments would be an unprecedented extension of the normal consent function that the Attorney-General has in relation to the prosecution of offences. The International Criminal Court is an independent body, and it would be inappropriate for the Attorney-General to speculate about or pre-empt decisions that the International Criminal Court might make. Again, my noble friend Lord Faulks commented on that. The phrase “international law” is included in Amendment 12 but is undefined. It is not clear which international laws the amendment is attempting to incorporate into the Bill.
In my opinion, we should allow the evidence that has been produced to the prosecutor, and the public interest, to speak for itself in each individual case, considered by an independent prosecutor, using their discretion.  We should not force the Attorney-General to potentially compromise his or her independence in a particular case by adjudicating on these other matters. For that reason, I ask the noble and learned Lord to withdraw his amendment.

Lord Falconer of Thoroton: I am obliged to everyone who participated in the debate and to the noble Baroness, Lady Goldie, for the care with which she answered the questions raised.
As the debate went on, I became increasingly concerned about the involvement of the Attorney-General. I am a very strong believer in the necessity for a Minister in the Government who has functions to protect the rule of law in the way in which the Attorney-General does in the Government of the United Kingdom and the Lord Advocate does in the Government of Scotland. In relation to the criminal justice system, including for the military, it is critical that the Attorney-General is, and is seen to be, politically independent of the Government in a way in which the current Attorney-General, Suella Braverman, did not seem to be in relation to the Dominic Cummings question. There are also questions over the Lord Advocate in Scotland in relation to the redaction of Mr Salmond’s evidence to the constitutional committee.
What is being proposed here is, in effect, a circumstance in which the Attorney-General will override the view of a prosecutor. If the Attorney-General agrees with the prosecutor on bringing a prosecution, and the decision will only come to the Attorney-General once a decision has been made to prosecute, he or she will be overriding that decision. If the provision is to remain in the Bill, only if the Attorney-General or the Advocate-General explains why he or she is doing that will there be a sense that politics has not intervened. Only if he or she gives reasons that stand up to scrutiny will a sense of political involvement be removed.
I completely accept that my proposal is novel and would not constitute formal advice, and I accept the point made by a number of noble Lords that it would break with precedent. However, it is so important to preserve the evident independence of the Attorney-General. I agree with what the noble Baroness, Lady Goldie, said to the Joint Committee on Human Rights that in performing this function, the Attorney-General would be acting entirely independently of government. If he or she says no to a prosecution that a professional prosecutor has said should go ahead, they should explain.
I will of course think carefully about what noble Lords have said in this debate but, for now, I beg leave to withdraw the amendment.
Amendment 10 withdrawn.
Amendments 11 to 13 not moved.
Clause 5 agreed.

Lord Russell of Liverpool: We now come to the group beginning with Amendment 14. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.

  
Clause 6: “Relevant offence”

Amendment 14

Lord Robertson of Port Ellen: Moved by Lord Robertson of Port Ellen
14: Clause 6, page 4, line 11, at end insert—“( ) An offence is not a relevant offence if it amounts to—(a) torture, within the meaning of section 134 of the Criminal Justice Act 1988 (torture); or(b) genocide, a crime against humanity or a war crime as defined in section 50 of the International Criminal Court Act 2001 (meaning of “genocide”, “crime against humanity” and “war crime”).”Member’s explanatory statementThis amendment provides that the presumption against prosecution does not apply to war crimes, crimes against humanity, genocide or torture.

Lord Robertson of Port Ellen: My Lords, the amendment stands in my name and those of the noble Lords, Lord Alton and Lord Campbell of Pittenweem, and my noble friend Lord West. It provides that the presumption against prosecution does not apply to war crimes, crimes against humanity or torture.
I am an instinctive supporter of our Armed Forces and the civilians who support them. I always was, but as Secretary of State for Defence and then Secretary-General of NATO, and with the heavy responsibilities that both posts impose, my regard and admiration grew and was magnified. In those posts, it is a huge responsibility to bear in the duty of care, not only to the staff who work for and to oneself but in carrying responsibility for the safety and security of those who we and they seek to protect. In the light of those factors and the fact that I have had personally to make the decision to deploy forces into danger overseas, I was almost automatically in favour of legislation that would have prevented vexatious investigations and prosecutions that make life a misery for so many of those we send to defend the country’s interest.
I want to ensure that we keep our legal system so trusted and clean that the International Criminal Court would be so confident of our system that it would instead focus its attention on the many outrageous examples of military excess elsewhere in the world. If this legislation had effectively dealt with these two objectives, I would be not only supporting this Bill but championing it. Sadly, neither of these criteria have been satisfied, and instead the Bill does the opposite. Not only that, but the Government—Her Majesty’s Government—have resolutely and implacably ignored and contradicted the universality of criticism of the Bill. In the face of warnings from all corners, they seem to be ploughing ahead with a measure which will damage the reputation of our legal system and that of Britain’s Armed Forces. That is why this amendment is before the Committee today and why it has so much support.
The problem—one might even go as far as to say the scandal—was summed up in a report that we have already heard about by Parliament’s Joint Committee on Human Rights. This is a bipartisan committee of both Houses of the British Parliament, which said
“we have significant concerns that the presumption against prosecution breaches the UK’s obligations under international humanitarian law (the law of armed conflict), international human rights law  
When we consider the opprobrium that was heaped on the Government regarding the internal market Bill, the Northern Ireland Secretary’s actual admission at that time that they had broken international law, and the Government’s subsequent surrender on that point, this is an unprecedented accusation for a bipartisan committee of Parliament to make of a parliamentary Bill.
The committee went on to say:
“At a minimum, the presumption against prosecution should be amended so that it does not apply to torture, war crimes, crimes against humanity or genocide.”
That is precisely what Amendment 14 does. Passing it could yet go some way to saving our country’s reputation and standing in the world.
As everybody has been saying, the Minister is a decent and intelligent person, and I deeply respect her. Will she tell us why she thinks that it is of no matter that this legislation is a signal to the world that we, the United Kingdom, are reneging on our commitment to the very standards that we, the British, had so much to do in the designing and upholding of? Why was torture specifically excluded from the presumption against prosecution when it was in the consultation, and then changed when it came to the Bill itself?
Saving our troops serving overseas in our name from the jurisdiction of the International Criminal Court has already been raised in the debate. I was in the Cabinet in 1997 which took the decision to sign the United Kingdom up to the International Criminal Court. In a world scarred by atrocities, massacres, war crimes and genocidal attacks, it was a trailblazing international effort to bring to justice those who transgress against the norms and international standards of the civilised world. Of course, there were some who advised against Britain participating in the ICC; the United States, China and five other countries had opted out, after all. The doubters believed at the time that our troops could be tried twice, but Robin Cook—the Foreign Secretary at the time—and I were of the same mind.
Britain’s exemplary legal system and processes, honed over the centuries, were robust enough to ensure that the ICC could raise no objection to our domestic processes, and that has been the case until this legislation appeared in its present form. Now, our current Defence Secretary, Ben Wallace, has received a letter from the chief prosecutor of the International Criminal Court, Fatou Bensouda, giving him a salutary warning. It is a tough letter and a grave message that should not be ignored or dismissed.
Fatou Bensouda said that were the effect of applying a statutory presumption to impede further investigations and prosecutions of crimes allegedly committed by British service members, the result would be to
“render such cases admissible before the ICC”.
She also said:
“I believe we would all lose, victims, the Court and ICC state parties, were the UK to forfeit what it has described as its leading role, by conditioning its duty to investigate and prosecute serious  violations of international humanitarian law, crimes against humanity and genocide on a statutory presumption against prosecution after five years.”
These are salutary words from the chief prosecutor of the ICC.
I did not believe that our country’s legal system should give any cause for concern to the ICC. It has not, but only up until this point. In its briefing for Committee, the Law Society makes the point about how the new
“presumption against prosecution in the Bill creates a special category of criminal case, hitherto unrecognised in UK law.”
As such, in the Bill, the Government meddle recklessly with principles of British law that have lasted for centuries, and, in doing so, they have opened a door to the questioning of the very integrity of our domestic legal processes. The statute of the ICC, signed up to by this country, states starkly in Article 29:
“The crimes within the jurisdiction of the Court shall not be subject to any statute of limitations.”
I remind the Committee that, in the Rome statute, the crimes referred to are genocide, crimes against humanity and war crimes—the very crimes we are talking about in this amendment.
I will make one final point. In its report on the Bill, the Delegated Powers and Regulatory Reform Committee of this House pointed out that
“torture is just one example of a serious offence that could be added to, or (subsequently) removed from, Schedule 1.”
The Government’s response to the committee noted this point and suggested that, if there were to be such a change by secondary legislation,
“then it may be appropriate to engage with the public under these circumstances, for example, via a public consultation.”
If my amendment is accepted, I do not believe for a moment that there would be any need for a public consultation to remove from the schedule the likes of torture, which the committee has drawn attention to. That is why this amendment to Clause 6 is so important: it renders irreversible the inclusion of torture and war crimes and prevents Henry VIII powers being abused in this connection.
I return to where I started—I say this to the noble Lord, Lord Lancaster, in all decency—and repeat my respect, admiration and, indeed, affection for those who serve us in uniform. They are special people and we owe them so much. The Bill pretends to offer support for them, but instead it undermines their reputation. It pretends to protect them from vexatious prosecution and investigation but instead opens them to ICC prosecution. It pretends to uphold strong, reputable British legal standards but actually undermines and devalues these very standards. I urge the Government to think again and accept this amendment. I beg to move.

Lord Hope of Craighead: My Lords, I support Amendment 14 for all the reasons that the noble Lord, Lord Robertson of Port Ellen, has given. But I also wish to speak to Amendment 36 in my name, which would add torture to the list of statutory offences in Schedule 1, and to Amendments 37 to 45 in the name of the noble Lord, Lord Tunnicliffe, which broaden the list of exceptions to include genocide and crimes in breach of the Geneva conventions.
In effect, what we are seeking to do is to provide the Government with an alternative to the approach taken by Amendment 14, which would place these exclusions in the body of the Bill—and in that way be more secure—and not in the schedule. For what it is worth, I should explain that I got in first with my Amendment 36, but I certainly do not claim primacy for my approach. I was seeking to fit in with the structure of the Bill, and it did not occur to me to deal with these issues in the rather more skilful way proposed by the noble Lord, Lord Robertson.
My particular interest, for the reasons mentioned at Second Reading, is to ensure that torture is not a relevant offence for the purposes of the Bill. It is all very well—if I may say so with great respect—for the Minister to say that the Government take that offence very seriously. But the case for excluding it is compelling—as indeed it is for the other offences on this list. The risk, if this is not done, of our armed personnel being prosecuted in the ICC has been addressed by others, including the noble Lord, Lord Robertson. However, I wish to emphasise the nature and strength of our international obligations and the importance of adhering to them and of our being seen to do so.
The torture convention stands out as an instrument which places torture carried out by public officials or others acting in an official capacity, such as those in our armed services, at the very top of crimes abhorred by the international community. Of course, the same could be said of genocide, although the rather primitive genocide convention lacks the teeth that the torture convention provides. Lord Bingham of Cornhill, as the senior Law Lord presiding over the Appellate Committee of this House, said in one of his judgments that the nature of the prohibition of torture requires the states that are parties to the convention, as we are,
“to do more than just eschew the practice of torture.”
Condemnation carries with it the obligation to punish acts of torture wherever and whenever the perpetrator is found within our territory. There is no time limit on this obligation. As the noble and learned Lord, Lord Morris of Aberavon, said earlier today, there is no exemption for this offence.
The idea that there should be a presumption against prosecution, making it exceptional for proceedings to be brought, as Clause 2 provides, simply cannot be reconciled with our obligations under Articles 4 and 5 of the convention to establish jurisdiction over and punish the torturer. These obligations are not qualified. They are not in any way reduced or softened by the passage of time. The plain and simple breach of the convention, which that provision amounts to unless torture is excluded from its reach, would be very regrettable, to say the least. It is certainly not the example we should be setting for other signatories of the convention which may be less concerned to uphold it than we are or have legal systems less strong than ours. We should uphold the convention, not undermine it, as the Bill seeks to do. I am sorry to put it that way, but, quite frankly, that is what is happening here.
There is another point, mentioned by the noble Lord, Lord Dubs. One of the innovations in the torture convention was the concept of universal jurisdiction. All states that signed that convention have a duty to  establish jurisdiction over an offender. We recognised our obligation to do this in the case of Senator Pinochet. We will be doing members of our armed services a great disservice if, by declining to prosecute them here by applying this presumption, we expose them to the risk of being prosecuted by other contracting states anywhere in the world that are more alert to their obligations under the convention than we would be. Let us avoid that risk, as the amendment of the noble Lord, Lord Robertson, seeks to do.

Lord Campbell of Pittenweem: My Lords, I support this amendment, to which I have added my name. It is always a pleasure to follow the noble and learned Lord, Lord Hope of Craighead, not least as, like him, I had the privilege of serving as an advocate depute, as Crown counsel, under the authority of the noble and learned Lord, Lord Mackay of Clashfern.
As others have done, I begin by saying that the Armed Forces have my unequivocal support and admiration, not least because they often put themselves at risk of their lives in the interests of this country. More particularly, in recent months they have demonstrated precisely the flexibility and capability that have enabled us to deal with the problems caused by the coronavirus.
I can be brief because I shall speak only to Amendment 14. In doing so, I accept and adopt the speech of the noble Lord, Lord Robertson of Port Ellen, authoritative as it was because of his previous responsibilities as Secretary of State for Defence and Secretary-General of NATO. It is clear that the purpose of this amendment is simple: to remove the presumption against prosecution for war crimes, crimes against humanity, genocide and torture. I accept that the Bill does not prevent prosecution, but I believe that a presumption against it is misconceived.
In support of that, I pray in aid the executive summary of the Bill produced by the authoritative Bingham Centre for the Rule of Law on 19 January 2021. I begin with a direct quote. It says that
“murder, torture and other grave war crimes face substantial legal barriers before there can be a prosecution. ... The Bill undermines our obligations under the Geneva Conventions and the United Nations Convention Against Torture.”
Further, it says that the Bill weakens the United Kingdom’s reputation for decisive action against war crimes and increases the likelihood that British soldiers may be prosecuted in the International Criminal Court. We heard, in the introduction by the noble Lord, Lord Robertson, of this amendment, the particular interest that the Chief Prosecutor of the International Criminal Court is taking in this legislation.
I have great difficulty in understanding the Government’s position on this matter. I have tried. I listened to and, indeed, read again the speech of the noble Baroness at Second Reading. She was kind enough to extend the opportunity to me and others to discuss particular issues connected with the Bill. I have read, too, the letter that the Government produced.
Respectfully, one difficulty is the fact that there is opposition such as I have described. I have no recollection, in the proceedings on the Bill so far, of any noble Lord speaking enthusiastically in support of the provisions that we seek to remove. That opposition consists, for example, of the Joint Committee on Human Rights—as  the noble Lord, Lord Robertson, has just told us—General Sir Nick Parker, Elizabeth Wilmshurst and the noble and gallant Lord, Lord Guthrie of Craigiebank. I would add to that panoply the noble and learned Lord, Lord Falconer of Thoroton, because, in the latter part of his speech on the first group that we discussed today, quoting the perceptive remarks of Mr John Healey, Member of Parliament, in the other place, he made the case against the Government’s provisions as eloquently as I have heard. If this were a piece of civil litigation, it would be easy to argue that all the authorities favour the amendment. I favour the amendment for this reason: it is necessary for both reputation and regulation, and I shall vote for it.

Bishop of Leeds: My Lords, I understand the stated rationale for this Bill and I state at the outset that I have enormous respect for the noble Baroness the Minister, but I am struggling. I am not a lawyer, but I would like to focus on a couple of specific questions. I understand the difficulty with vexatious and untimely litigation, which is a curse, but legitimate litigation, however inconvenient, is surely the blessing of a free and civilised society that honours international law and a rules-based system in more than words.
The basic reason why I speak in support of Amendment 14 is that I fear the law of predictable or conscious consequences more than the law of unintended consequences. I ask the Minister to explain clearly this anomaly, which I cannot get my head around: this Bill, as currently drafted, will make it possible for an incident of torture or murder not to be prosecuted while a sexual offence committed in the same incident would be subject to prosecution. That suggests to me either that the reference to sexual offences is arbitrary or that torture and crimes against humanity and so on should also be admitted in the same category.
I understand the assertion that the Bill does not prevent prosecution, but we are dealing with law, not just with assertions of what may or may not be possible—it is what is written in the body of the Bill. I have said that I am not a lawyer, but I support the Armed Forces—my first career was at GCHQ in Cheltenham, providing direct support to our forces, not least during the Falklands conflict—and, despite not being a lawyer, I know that torture is absolutely forbidden in both domestic and international law and that no bars to prosecution are possible.
As Field Marshall Lord Guthrie pointed out more than once, these restrictions in the Bill cannot stand unchallenged. He said:
“By introducing a statutory presumption against prosecution and statutes of limitations, this bill undermines the absolute and non-derogable nature of the prohibition of torture and violates human rights law as well as international criminal and humanitarian law.”
Making torture an excluded offence under the Bill would, I think, have the double benefit of first, avoiding what Lord Guthrie rightly called the “de facto criminalisation” of the offence and, secondly, keeping the UK in line with the rules-based international order that we claim to uphold.
Genocide, crimes against humanity and war crimes are similarly forbidden in law. Amending the law as proposed in the triple lock would make the UK the only country in the world to have deliberately legislated  to restrict the Geneva conventions. Where does this place us in a world to which we claim to be an example of law and civility? Most oddly to my mind, however, as a signatory to the 1998 Rome statute, which enables the International Criminal Court to prosecute genocide, crimes against humanity and war crimes when a Government are unable or unwilling to do so, the Bill will make it possible for British soldiers to be prosecuted in the Hague—that is, before a foreign court. Really?
I strongly support the amendment not just because of the legal questions, but because there is a strong moral case for it. I recognise that the last time I made a moral argument in this House during the internal market Bill, it was dismissed by another Minister with the words, “We will not be listening to moral strictures,” but there is a moral case here. The church that I represent stands with victims of torture, and I think that our nation has done hitherto and should continue to do so. Our reputation as a country that is committed to the rules-based international order matters more than I think we sometimes realise. This amendment would further incentivise the UK to maintain the highest standards on the battlefield. It is this that differentiates the civilised from the uncivilised in combat.
If the Government will not accept the amendment, I would be grateful if they could explain rationally, legally and consistently, and perhaps even morally, why these anomalies are acceptable.

Lord West of Spithead: My Lords, it is a pleasure to follow a West Country SIGINTer. I will speak to Amendment 14 in support of my noble friend Lord Robertson and the noble Lords, Lord Alton of Liverpool and Lord Campbell of Pittenweem. It is extraordinary that the presumption against prosecution applies to war crimes, crimes against humanity, genocide and torture. These crimes have a special place in the rubric of human rights unacceptability. In its current form, this legislation would seem to decriminalise such crimes by members of the Armed Forces if they are reported after five years. This cannot be the intention and serves the interests of no one. Indeed, in their attempt to protect the military, the Government will in fact damage our Armed Forces and cause our international standing serious harm, as has been said by all of the previous speakers.
If the Government say that the threat is more apparent than real because this will not happen, that will not wash, as the very strong perception remains, and that in itself can be damaging. As has been said before, there are a number of things about this Bill where the perception is almost more important than the fact. There should be no doubt in people’s minds about the commitment of the UK Armed Forces to adherence to international law in relation to war crimes. If their enemies believe they are not, they will feel that they have a right to be unconstrained in their behaviour against our people.
The Government initially seemed to understand that it is in the interests of all for allegations of torture to be investigated fully whenever they might arise. I have to say that I do not understand why they have changed their position. If war crimes are excluded from this, as has been said by a number of speakers,  there is also an increased likelihood of UK service personnel being brought before the ICC. In debate on the International Criminal Court of 2001, it was made very clear that accusations of crimes mentioned would be tried by British courts, and we put huge effort into making sure that would be the case. It would be a disgrace if inadvertently, by reducing the scope for prosecutions in this country, we were to increase the scope for prosecutions in the Hague and possibly, as has been said, elsewhere in the world. That does not help our servicemen and women. I believe strongly that this amendment would ensure that that will not happen and I will vote for it.

Lord Craig of Radley: My Lords, like the noble Lord, Lord West, I speak to Amendment 14. I strongly support this amendment. Torture, genocide and other crimes identified in the laws of conflict should never be subject to doubt that they are not fundamental to the way in which our Armed Forces are expected to operate, no matter how stressful or dangerous the situation they are exposed to on operations overseas. A dangerous ICC charge of not upholding such international law could arise.
Government reasoning for not including torture and war crimes, as is done for sexual crimes, seems to be that there might be some discernible range of tortures or crimes in the Geneva conventions which could be taken into account by the prosecuting authority—bearing in mind the stresses of active overseas operations—before reaching a decision to prosecute. If that is the case, surely it could be applied to consideration of a discernible range of sexual crimes, which the Bill seeks to eliminate from any consideration. Whether it is sexual crimes or torture, degrees of criminality surely can arise. If so, that should not be some explanation, reason or excuse for not prosecuting; neither should be singled out for different treatment. Torture and war crimes should be grouped with those of sex and treated as crimes always to be prosecuted.

Lord Browne of Ladyton: My Lords, I support Amendment 14 and have considerable sympathy for the other amendments in this group, so I will speak generally about these issues. Like all the previous speakers on this group, I believe that this Bill, as presently drafted, undermines our obligations under the Geneva conventions and the UN Convention against Torture, which explicitly require that serious international crimes, such as torture, genocide and crimes against humanity, are investigated and prosecuted. I am deeply concerned about this Bill because it promotes the growing, dangerous idea that the UK can simply set aside international obligations in law. Its entry into force will be yet more evidence of what Theresa May called the abandonment of the UK’s moral leadership on the world stage, and will add to the risk of more prolonged investigations of our Armed Forces, not fewer.
The Government have excluded a number of sexual offences listed in Schedule 1 from the scope of the Bill. During the Bill’s passage through the other place, the Government were asked on several occasions to explain why crimes such as torture and genocide remain within scope of the Bill, while offences of a sexual nature are  excluded. In response, the Secretary of State and the Minister for Defence People and Veterans argued that violent and lethal acts are sometimes justified during combat, and these activities can expose service personnel to allegations of torture or other war crimes, whereas sexual violence can never be justified. The Minister repeated that explanation and expanded upon it at Second Reading.
I struggle to understand this explanation or to grasp why this distinction has been made. The best I can do is to summarise it in this way: the argument seems to be that the very nature of war or conflict justifies special rules to protect those engaged in conflict from allegations that they have breached the laws designed, sometimes solely but at least in part, to prevent just war and conflict from being used as an excuse for the perpetration of the most egregious crimes. This argument simply cannot be allowed to prevail.
The use of torture, like sexual offences, can never be justified. The legal definition of torture describes it in terms of the “intentional” or “deliberate” infliction of severe pain or suffering. In short, these acts are clearly distinct from legitimate use of force during combat. It is surely our duty to ensure that no British service personnel will be engaged in a situation which would put them at risk of credibly being accused of conduct meeting any of the relevant definitions of torture, genocide, crimes against humanity or war crimes.
In the event of a rare, credible allegation of such behaviour being levelled at British service personnel, they should be effectively investigated and, where there is sufficient reliable and credible evidence, prosecuted. That is my understanding of our obligations and what we should be seeking to support with no conditionality.
Ministers who deny that the triple lock will weaken our stance on such crimes dismiss these arguments with the rhetorical equivalent of a wave of the hand, even though a large and diverse coalition of military, legal and other experts have sustained their view that it will do exactly that. As your Lordships’ House has heard from every previous speaker, they can explain comprehensively why that is the case.
I have one final point and I make no apology that it is a point which has already been made by every one of the preceding speakers. What is effectively a de facto statute of limitations on the prosecution of crimes makes it much more likely that British soldiers will be prosecuted by the International Criminal Court, which acts only where countries are unwilling to prosecute their own citizens. The noble and learned Lord, Lord Hope of Craighead, explained very clearly at Second Reading and repeated today that this not only makes investigation and possible prosecution by the ICC more likely, but also subjects them to the possibility of such investigations and prosecutions by any number of other jurisdictions.
There are three very specific public warnings of the risks of investigation and possible prosecution by the ICC. In addition to the letter to Ben Wallace, which has been referred to on a number of occasions, the Office of the Prosecutor of the International Criminal Court warned that if a proposed presumption against prosecution were introduced, it
“would need to consider its potential impact on the ability of the UK authorities to investigate and/or prosecute crimes allegedly  
The Office of the Prosecutor also stated in the final report Situation in Iraq/UK published in December 2020, that it will continue to monitor the development of the Overseas Operations Bill and its impact, and may revisit its decision not to take action against the UK for war crimes committed in Iraq in the light of new facts or evidence. The increased risk of investigation or prosecution by the ICC also applies in respect of other past and future overseas operations.
We should all, Government and Parliament, remember that we have a solemn commitment to our Armed Forces given on ratification of the Rome statute of the International Criminal Court, that no member would ever be at risk of appearing in The Hague. If this Bill in its present form becomes an Act of Parliament, it will be a deliberate breach of this commitment and the ultimate irony is that it will expose our armed forces in the future to long and possibly repeated investigations.

Lord Berkeley of Knighton: My Lords, the Minister, who has dealt with our concerns so graciously all afternoon, will probably realise that we now come to the winter of our discontent. It is here that I hope—if I may say so, with great respect—that she will consider even more carefully what is being said.
I support Amendments 14 and 36 in the name of my noble and learned friend Lord Hope of Craighead. He made the point—we hear it quite often in your Lordships’ House—that an undertaking from the Government to take seriously—to say that it is the intention of the Government—is not in itself a sufficient replacement for statute where something as vitally important as this is concerned.
Torture does not work—you hear what you want to hear—but it is also abhorrent, and, as the right reverend Prelate just said, it is immoral and uncivilised. We need for that reason to set an example which will protect our service men and women from possible torture if captured. I hope the noble Lord, Lord West, will forgive me if I quote a little further from what he has written:
“What is quite clear, and it was inculcated in us from day one of warfare training, is that ‘there are no circumstances in which torture, cruel, inhuman or degrading treatment can ever be justified’; it’s a principle that all members of our military must, and do, abide. We must be wary of creating a perception and certainly not a reality that this is not the case.”

Baroness Chakrabarti: My Lords, I do not know whether I am proud to speak in support of my noble friend Lord Robertson of Port Ellen and all the other moving speeches that I have heard or devastated that I feel that I need to. The arguments are clear and compelling and have been made from across your Lordships’ House. I need not repeat them save to remind the Minister that the warning from the chief ICC prosecutor is a very serious matter indeed and not something that any of us can be proud of. I therefore note in particular the speeches of my noble friends Lord Robertson and Lord Browne of Ladyton, former Defence Secretaries and one is a former Secretary-General of NATO. I have not always agreed with them on every matter of human rights disputes but the Minister and all your Lordships will know that their comments would not have been made lightly.
It was also important that the noble and learned Lord, Lord Hope of Craighead, reminded us of the universal jurisdiction over torture. I must therefore support not just Amendment 14 from my noble friend Lord Robertson but all noble Lords who are attempting to limit the reach of the Bill and prevent the presumption applying to war crimes, genocide, torture and crimes against humanity.
I say without hesitation to noble Lords who are not speaking in this group and who perhaps spoke in the past about what members of our Armed Forces would expect and whether we should feel comfortable looking them in the eye, that I have never met a member of Her Majesty’s Armed Forces who has attempted to justify any of those grave offences—quite the opposite. So much of their honour and their vocation is about believing in the rule of law and human rights internationally and putting their lives on the line so that grave offences of that kind are defeated elsewhere in the world and ruled out.
I return to the point made by the right reverend Prelate the Bishop of Leeds about sexual abuse. The Minister said very clearly on an earlier group that sexual offences had been singled out in the Bill because, in her words, the Government wanted to be clear that that kind of behaviour is never acceptable. Clearly, as a matter of domestic and international law, the offences touched on in this group—war crimes, genocide, torture and crimes against humanity—are never acceptable either. So there is a complete illogic about including sexual offences but not these other very grave matters.
The Minister will say that this is not a statute of limitation, it is just presumptive. I am afraid that that will not wash with large numbers of the public nor, crucially, elsewhere in the world, including, it would seem, with the chief prosecutor of the ICC. Furthermore, even if it were impossible for these offences ever to be perpetrated by Her Majesty’s forces in future, we have been told repeatedly that this is as much about reassurance and the signals that we send as it is about the letter of the law. Well, reassurance is a two-way street. It is of course about protection for our Armed Forces, but it is also about sending signals, not just to our Armed Forces but to our allies and friends—and to our enemies, including enemies who, I am sorry to say, might at some point in future have members of Her Majesty’s forces in their custody. That is perhaps the moment when these grave crimes become a matter of even closer concern than they are the rest of the time.
I say to the Minister, for whom I have a great deal of respect—I think she is a very gifted advocate but also a reasonable person, and one of the most decent members of the Government—and to the noble and learned Lord, Lord Stewart of Dirleton, as a law officer, who I think may be in his place, that this group of amendments, perhaps more than any other, should be responded to at the close of this evening’s debate with at least an offer to consider them. It would be unconscionable for something like this group not to be reflected in the legislation when it passes. And the legislation will pass, because of the Government’s mandate and majority. The Minister will remind us at   various stages that the Bill was a manifesto commitment, but it was not ever a manifesto commitment to open the door, send a signal or give reassurance in relation to war crimes, genocide, torture and crimes against humanity.
People deserve advocates—even alleged wrongdoings deserve the most gifted and fearless advocates, and everyone should be so lucky as to have such a gifted advocate as the Minister—but we do not deserve the rotten law that is about to be made, exposing our Armed Forces, and humans all over the world, to lines that should never be crossed.
Sitting suspended.

Lord Lexden: My Lords, the debate on Amendment 14 will now resume. I call the next speaker, the noble Lord, Lord Thomas of Gresford.

Lord Thomas of Gresford: My Lords, the noble Lords, Lord Robertson and Lord Browne of Ladyton, and my noble friend Lord Campbell of Pittenweem have made powerful speeches with which I totally agree. I will confine myself to looking more closely at the nature of the offences we are discussing.
The United Nations convention on genocide of December 1948 came about as the result of campaigning by Raphael Lemkin, who coined the term in 1943 after witnessing the horrors of the Holocaust, in which every member of his family except his brother was killed.
Article II of the convention defines genocide as an act
“committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”.
The acts include
“Killing … Imposing measures intended to prevent births within the group … Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”.
No one in this country has ever been accused of genocide.
It is different with war crimes. I watched a corporal in the British Army plead guilty to a war crime in the Baha Mousa case, namely torture. He was acquitted of murder and received a sentence of 12 months’ imprisonment.
War crimes are defined as grave breaches of the Geneva conventions—
“acts against persons or property protected under the provisions”
of those conventions. They include wilful killing, torture, wilfully causing great suffering, unlawful deportation, the taking of hostages and other acts. To suggest that, where there is evidence sufficient to found a conviction on any of these matters, a prosecution could be avoided by a presumption against prosecution, is grotesque: “rotten law”, the noble Baroness, Lady Chakrabarti, said a moment ago, and I totally agree with her.
The thought that, if the DSP had decided there was sufficient evidence that a prosecution was in the public and the service interest, the Attorney-General could nevertheless block a prosecution, holding their hands up and saying that it was not a political decision, is equally demeaning. As the noble Lord, Lord West of Spithead, put it, it is a disgrace that it should be included in a Bill to be passed by Her Majesty in Parliament.
The picture is that there is somebody in government who has decided as a matter of policy that he or she could not block the prosecution of sexual offences with a presumption of prosecution. Why? What is the justification for selecting that category of offences when we have the types of offences not excluded? It is an arbitrary choice, as the right reverend Prelate the Bishop of Leeds put it. Why is there this anomaly? I look forward to the Minister’s reply. It is a mistake, is it not? I certainly hope so.

Lord Anderson of Ipswich: My Lords, the purpose of these amendments is familiar by now: to ensure that our service personnel are protected from the risk of prosecution in the International Criminal Court. To anyone who believes that this risk is illusory or negligible, I recommend not only the legal opinions variously expressed by my noble and learned friend Lord Hope, by former Judge Advocate Blackett and by the Joint Committee on Human rights, but the 184-page final report of the outgoing prosecutor of the ICC, dated 9 December 2020 and entitled Situation in Iraq/UK.
The noble Lord, Lord Browne of Ladyton, has already mentioned this report, so I will refer to only two things in it: the conclusion that there was a reasonable basis to believe that war crimes including torture were perpetrated by British forces in Iraq between 2003 and 2009, and the last words of its final page, an ominous warning that the prosecutor’s office would in the future consider
“the impact of any new legislation on the ability of the competent domestic authorities to consider new allegations arising from the conduct of UK armed forces in Iraq”.
The prosecutor’s words are reinforced by the recent letter referred to by the noble Lord, Lord Robertson, and echo the Australian Brereton report of November 2020—which I mentioned at Second Reading—which pointedly observed of this Bill:
“There is a large question as to whether such a law would meet the requirements of Article 17 of the Treaty of Rome.”
Of the approaches we are offered in this group, I prefer Amendment 14, on two grounds: first, as my noble and learned friend Lord Hope has pointed out, because of its less vulnerable position in the body of the Bill; and, secondly, because Article 14, if I am not mistaken, maps more precisely on to the jurisdiction of the ICC. It applies to war crimes as broadly defined in Section 50 of the ICC Act 2001 and Articles 5 and 8.2 of the Rome statute.
Amendment 39, by contrast, would exclude from the presumption against prosecution only war crimes falling within Article 8.2(a) of the Rome statute: grave breaches of the Geneva conventions. That would leave within the scope of the presumption against prosecution the 26 categories of war crimes in international armed conflict that are listed in Article 8.2(b). Therefore,  under Amendment 39 there would appear to be at least some risk of ICC intervention in any case that could be brought within those categories.
That was the dry contribution of just another lawyer to a debate that has seen the case for these amendments advanced with astonishing force on the very highest military, legal and political authority. The contrary case seems to be made only weakly in the Minister’s letter of the other day. Like other noble Lords, I admire the Minister greatly, and for that very reason permit myself to wonder whether the Government will really persist in opposing these amendments.

Baroness Jones of Moulsecoomb: My Lords, it is very unusual for a Green to be among the majority. I will take great delight in that.
I cannot compete with the erudition and rationale of noble Lords who have spoken already, but I will draw attention to the fact that the Government are trying to create this triple lock against prosecution as a safe harbour for military criminals—regardless of how serious their crime—and then, out of nowhere, the Bill says, “Ah, well, these protections apply to any crime, but not sexual offences.” I am fascinated to find out the real reason for excluding sexual offences in this way. Five years after their offence, a murderer, a torturer and a thief all get protected, but an accused sexual offender gets prosecuted regardless. Even if the murderer, torturer or thief actually did it, they can get off, but an innocent person accused vexatiously of sexual offences would be prosecuted. It really does not make sense to make this exception of one category of offences.
It is not just rape; the list in Schedule 1 includes things such as
“possession of extreme pornographic images”,
“outraging public decency” and any offence under the Sexual Offences Act 2003, such as Section 71, which criminalises sexual activity in a public lavatory. A soldier could have consensual sex in a public toilet, kill their partner and face the outrageous prospect under this Bill of being prosecuted only for having sex in the toilet—they might be protected from the murder charge.
Likewise, the Bill singles out slavery, but only slavery for sexual exploitation—take as many slaves as you like, after five years you will probably get away with it, but you might get prosecuted for any slaves who are sexually exploited.
It staggers me that the Government have chosen this specific exemption to their messy triple lock. Of course I support it, but we must have those other exemptions as well. I ask those noble Lords who have spoken so strongly on this issue: where were they during the spy-cops Bill, when we heard criminals—police spies and police agents—being given immunity from all these crimes? In any case, it all loops back to the obvious conclusion that this Bill is ridiculous. It creates obvious and unacceptable injustice and needs to be scrapped entirely.

Lord Hannay of Chiswick: My Lords, I will speak in support of Amendment 14 in the names of the noble Lords, Lord Robertson, Lord Alton,  Lord West and Lord Campbell, and Amendment 36 in the name of my noble and learned friend Lord Hope of Craighead. In doing so, I apologise for not having spoken on Second Reading, due to an inadvertent mistake over timing.
I back the amendments not out of any objection to the Bill as a whole. The Bill’s objectives are laudable ones of giving protection to our service personnel against vexatious inquiries and prosecutions. However, the Bill as drafted actually increases those risks rather than reduces them. I oppose these defects, which the amendments seek to remedy on the grounds of both practicality and principle. The practical problem is a very obvious one. While the Bill places limitations in time in our domestic law on the pursuit of inquiries and prosecutions, it does not and cannot impose such limitations with respect to our international obligations under the Rome statute, which established the International Criminal Court and which Parliament ratified and gave effect to before its entry into force. The Rome statute, in whose negotiation we participated fully—I was myself involved to a modest extent when I was the UK’s Permanent Representative to the UN in 1995—contains no such limitations with respect to the crimes identified in the statute. The risk is therefore, as many other noble Lords have said, that our service personnel could be prosecuted in the International Criminal Court even though we had declined, under the provisions of this Bill, to take any action.
That is no theoretical risk. Quite recently, the prosecutor of the International Criminal Court decided not to pursue cases against our personnel on the explicit grounds that we had domestic legislation to deal with the alleged offences and had demonstrated our willingness to use it. This could therefore be a case, I fear, of being out of the frying pan and into the fire if we do not take steps to remove from the scope of the Bill the extraordinarily serious offences set out in the Rome statute.
The argument of principle in favour of these amendments leads on from the practical argument. The International Criminal Court is an important part of that rules-based international system which the Government have argued, quite correctly in my view, that it is in our national interest to sustain. In recent years, the Government have done a good job in doing precisely that against the intemperate onslaughts of the Trump Administration against the International Criminal Court. Here, however, we are being asked to legislate in a way that could put us in contradiction with our obligations under the Rome statute. That clearly is not a sensible or principled thing to do. At worst, it could lead to British service personnel being prosecuted unnecessarily in the ICC, which would inevitably lead to an outcry in this country, possibly challenging the basis of our membership. Less dramatically, it will be seen by the critics and opponents of the International Criminal Court around the world—in places like Russia and China, and the US in some parts of the body politic—as a weakening of our support of the court and as undermining its authority. For both the reasons of practicality and principle, I hope that the Government will, before we get to Report, reconsider these flawed aspects of the Bill and remedy them.

Baroness Blower: My Lords, it is a great pleasure to listen and to speak, however briefly, on Amendment 14, which is clearly the vehicle for correcting one of the significant flaws of the Bill. I acknowledge that I have no military experience and but limited knowledge of the law in comparison to many noble Lords in this House.
As other Members of the Committee have said, this amendment is necessary as it provides that the presumption against prosecution will not apply to war crimes, crimes against humanity, genocide or torture. As others have said in this debate, it would restore our obligations under the Geneva conventions, the UN Convention against Torture and the Rome statute to investigate and prosecute grave breaches of humanitarian law.
I am indebted to the Bingham Centre for the Rule of Law, on whose material I have drawn to make these few remarks. It says that,
“although rare, abuses by the military do happen”,
and that
“The UK has a long and proud reputation of decisive action against war crimes … We do not protect British troops … by hiding from the truth or acting with impunity.”
On Second Reading I quoted Martin Luther King Jr, who famously said that
“the arc of the moral universe is long, but it bends toward justice”.
Sally Yates, the US Deputy Attorney-General appointed by President Barack Obama in 2015, added a caveat to this quote, saying that it does not get there on its own. That is why we have international and humanitarian law.
This amendment would correct what is clearly a flaw in this Bill as originally drafted. I cannot possibly rise to the erudition of the noble Lord, Lord Thomas of Gresford, or my noble friend Lady Chakrabarti. But I insist that it must be seen in the Bill that there can be no presumption against war crimes, crimes against humanity, genocide or torture in terms of prosecution. For this reason, I fully support this amendment.
I ask the Minister, who is clearly much admired in your Lordships’ House, to outline once more why she feels that such a presumption is appropriate and why it does not send a very bad signal that undermines the trusted nature of our legal system and our international reputation. As has been said by so many Members of the Committee, it has the potential to open our military personnel up to proceedings in the International Criminal Court—which is absolutely not where we wish to be.

Baroness Smith of Newnham: My Lords, unlike the first group of amendments, this group—particularly Amendment 14—has very broad support across your Lordships’ House. That is scarcely surprising because one of the very clear omissions from the Bill was precisely the group of crimes so eloquently outlined in the opening remarks by the noble Lord, Lord Robertson of Port Ellen.
It is clearly right that one of the exemptions from the presumption is sexual violence—that is fine—but it is a glaring omission to leave other war crimes, crimes against humanity, torture and genocide off the face of the Bill. Indeed, it has been raised at every stage of the Bill. It was raised on Second Reading in the other  place and many times on Second Reading in your Lordships’ House. I have only one question to ask the Minister: how can she and the Government justify this omission?
As Members across the Committee have said, it is so important for the reputation of our country that we abide by the rule of law and the conventions which we have signed up to and have so often led. As a country, we pride ourselves on supporting certain values, including opposing torture, genocide, war crimes and crimes against humanity. It is inconceivable that we should say that this is anything that the Armed Forces or we as a country should condone.
My only sense from the Minister, in private meetings and her response to the debate at Second Reading regarding having sexual offences going against presumption but not other war crimes, was that there would never be a case on the battlefield when use of sexual violence was sanctioned. That seems to suggest that genocide, torture or other war crimes could be sanctioned. Surely that is not what the Minister meant or what the Government mean. Were there ever to be a case of torture or genocide—God forbid—surely we should be leading the way in ensuring that it is investigated and prosecuted. The reason it is so important to have this in the Bill is precisely to demonstrate our commitment to upholding human rights and not falling down any cracks.
I am absolutely sure that nobody would willingly commit any of these crimes, and I do not think that very many cases would ever even be investigated, but the amendments need to be in the Bill to ensure that we are not resiling from the conventions that we have signed up to. The noble Lord, Lord Lancaster, who I do not think has participated on this group of amendments, earlier prayed in aid Major Bob Campbell, who had said that he would not be taken to the ICC, and it might have been better to be in front of the ICC than subject to protracted and repeated investigations. The reason that service men and women and veterans from the United Kingdom have not been taken to the ICC is precisely because of our respect for international law.
Why are the Government creating a piece of legislation that leaves such a large hole and potentially damages our reputation? It would be much better to amend the Bill, to have it include war crimes, crimes against humanity, genocide and torture, and ensure that if anyone were accused of such a crime, it would be investigated and prosecuted if necessary and there would not then be a stain. A great problem is the sense that there is a shadow hanging over somebody and the feeling of “If only it hadn’t been for that presumption” or “Because of that presumption, we are now being taken to the Hague”. Surely that is not a position the Government want to leave anybody in.

Lord Falconer of Thoroton: My Lords, this has been an incredibly instructive debate. Every single speaker has spoken in favour of Amendment 14 in a debate that has lasted an hour, and they could not have been more diverse in their experience: lawyers, military people, senior politicians. We have had the whole range, and they have all spoken in favour of Amendment 14.
That is hardly surprising because the Government are proposing to introduce a presumption against prosecuting people for torture, genocide, war crimes or crimes against humanity. The chief prosecutor of the ICC wrote a letter to the Secretary of State for Defence in the past few days saying that we would all lose—victims, the court and ICC state parties—were the United Kingdom
“to forfeit what it has described as its leading role, by conditioning its duty to investigate and prosecute serious violations of international humanitarian law, crimes against humanity and genocide”
on a statutory presumption against prosecution after five years. I completely agree; the people who would suffer would be our military because they would become more vulnerable to be prosecuted in the ICC. We would be sending a message to the world that we were retreating from doing all we could to stop torture, genocide, war crimes and crimes against humanity. That is not something that the British Government should be doing, because it is wrong and because of the practical impact.
I very much hope that the noble Baroness, Lady Goldie, will take back the message from the Lords to the Ministry of Defence that there is almost universal opposition to not including among the offences not covered by the presumption torture, genocide, war crimes and crimes against humanity. I hope that she also takes back the message that she agrees and that those crimes should be put into the exempted category.
On a technical note, I support my noble friends Lord Robertson of Port Ellen and Lord West of Spithead and the noble Lords, Lord Campbell of Pittenweem and Lord Alton of Liverpool, in their way of dealing with this matter—that is, putting those crimes into the body of the Bill and not in a schedule, so that the Government cannot change the position by a statutory instrument subsequently. I also support an amendment in the name of my noble friend Lord Tunnicliffe that the power to remove by statutory instrument any offences in the schedule at the moment should be removed. In that way, the Government cannot change their mind on, for example, sexual offences and remove their exemption from the presumption.
I cannot express more strongly the support of this side of the Committee for Amendment 14.

Baroness Goldie: My Lords, predictably this debate surrounding Clause 6 and Schedule 1 has given rise to the passionate, informed and powerful advance of arguments, which I was expecting. I have listened to the sentiment and emotion that have accompanied the articulation of the arguments and I would have to be completely mute not to hear the force of those emotions. As the noble Lord, Lord Berkeley of Knighton, indicated, the Minister has come to her winter of discontent—an apt description because the debate around this part of the Bill has encapsulated the major areas of anxiety and concern.
As I set out earlier, Clause 6 details those offences that are excluded from the measures in Part 1 of the Bill. Those are set out in Schedule 1, including offences committed against a member of the regular or reserve forces. All the excluded offences listed in the schedule are sexual offences. I shall come to that in a moment; a  number of questions have been posed about it but it reflects the Government’s strong stated belief that the use of sexual violence or sexual exploitation during overseas operations is never acceptable in any circumstance.
The exclusion of sexual offences from Part 1 does not mean that we will not continue to take other offences such as war crimes and torture extremely seriously. I realise that some may dismiss these as mere words and feel unconvinced. I should say that the presumption against prosecution still allows the prosecutor to continue to take decisions to prosecute those offences, and the severity of the crime and the circumstances in which it was allegedly committed will always be factors in their considerations.
The noble Lord, Lord Thomas of Gresford, asked why we have not excluded torture offences from Part 1 measures and why we have excluded sexual offences. In the course of their duties on overseas operations, we expect our service personnel to undertake activities which are intrinsically violent in nature. They fight, they use force, they may use lethality, and they may detain. All these activities are predictable in an overseas operation. What is not predictable, and has no place in an overseas operation, is committing a sexual offence. However, the other activities to which I referred can expose service personnel to the possibility that their actions may result in allegations of, for example, torture. If the prosecutor, having received the results of an investigation, considers that there is no case, he will not prosecute, but if he considers that there is a stateable case, Part 1 of the Bill will not prevent prosecution of torture. That is why we have made the distinction between the two different characters of crime: one that you would never expect to find in an overseas operation, and one that could arise because of action that may have been taken in good faith by Armed Forces personnel believing that it was legitimate and proportionate.
In response to the noble Lord, Lord Robertson, on the strong emotions which this part of the Bill has elicited, I am aware that certain interpretations have arisen, with the suggestion that the continuing commitment to upholding international humanitarian and human rights law, including the United Nations convention against torture, is somehow undermined by the Bill. I submit that this is a misconception, which I am happy to address and correct.
The UK does not participate in, solicit, encourage or condone the use of torture for any purpose, and we remain committed to maintaining our leading role in the promotion and protection of human rights, democracy and the rule of law. It is worth remembering that, whenever a prosecutor currently makes a decision to prosecute an offence, including offences under the International Criminal Court Act, they must consider the public interest factors in the prosecutor’s full code test, in addition to making a judgment about the strength of the available evidence.
The public interest factors include the severity of the offence, the level of culpability of the suspect, the circumstances of and the harm caused to the victim, and the suspect’s age and maturity at the time of the offence. There is no suggestion when exercising this  existing discretion that our prosecutors are not acting in compliance with international law, and we consider that the same is true when they will, in future, be required to take into account the measures in Part 1 of the Bill.
The noble Lord, Lord Robertson, and other noble Lords raised the matter of the International Criminal Court and the recent letter, which I have read in detail. It is interesting that the letter postulates that where the effect of applying a statutory presumption be to impede further investigations—the Bill does not do this—or to impede prosecution of crimes, because such allegations would not overcome the statutory presumption, the ICC would want to monitor what was happening. This is a perfectly legitimate position for the ICC to adopt. Given that this was raised by the noble Lords, Lord Robertson, Lord Campbell of Pittenweem, Lord West and Lord Browne of Ladyton, and the noble and learned Lord, Lord Hope of Craighead, it might be helpful to note here the relationship between the UK and the International Criminal Court. Some of your Lordships may be unaware of what the current relationship is, which suggests to me that something arising out of the blue would, frankly, be beyond credibility.
In accordance with International Criminal Court procedures, a preliminary examination would first need to be initiated by the Office of the Prosecutor to decide whether to take that step. In practice, in the event that the OTP was to raise issues with us about a possible investigation, that would trigger a long and very detailed preliminary examination of the situation, within which we would be consulted at each step of the way, for the OTP to determine whether it was necessary to open any investigation. That means that we would have many opportunities to prevent UK service personnel from being prosecuted at the ICC. We would be able to show that the UK national system was both willing and able to conduct investigations and prosecutions, thus rendering unnecessary the ICC’s jurisdiction over UK service personnel. I offer that additional information in the hope that it will provide some reassurance that these activities are not all operating in silos. There is a co-operative and positive relationship with the ICC.
Amendment 14, proposed by the noble Lord, Lord Robertson, seeks to add wording to Clause 6(3) to explicitly exclude further offences from being a “relevant offence” under Part 1. These are torture, under the Criminal Justice Act 1988, and genocide, a crime against humanity or a war crime under the International Criminal Court Act 2001.
The noble and learned Lord, Lord Hope of Craighead, made a very powerful submission in support of Amendments 36 to 45, which in combination would have a similar effect by ensuring that torture offences contained in Section 134 of the Criminal Justice Act 1988, under the law of England and Wales, and the offences of genocide, crimes against humanity and grave breaches of the Geneva convention contained within the International Criminal Court Act 2001 as it applies in England and Wales, Northern Ireland and Scotland, were listed as excluded offences in Schedule 1. These amendments would amount to a comprehensive list of very serious offences to be excluded from the application  of the measures in Part 1. The noble and learned Lord advanced his case cogently and with purpose, as one would expect, and others did likewise in their support of the amendments.
I am fully aware of the deep concerns that have been expressed that the Bill does not exclude these offences, and I have already set out the Government’s reasoning for excluding only sexual offences from the coverage of Part 1. I believe the perception has arisen that the absence of crimes from Schedule 1 has been equated with the non-prosecution of such serious crimes because it is assumed that the Bill will bar such prosecutions. However, I reiterate that the severity of an alleged offence will continue to be an extremely important factor for a prosecutor in determining whether or not to prosecute.
I realise that my response may be regarded by your Lordships as inadequate, so I will endeavour to provide some concluding thoughts. I have argued that the measures in Part 1 will require a prosecutor to give additional consideration to some specific matters—most importantly, the unique context of overseas operations. However, quite rightly, these measures will not prevent the prosecutor determining, having considered all the circumstances of the case, that it is appropriate to prosecute. The presumption in Clause 2 may be rebutted where it is appropriate for the prosecutor to do so.
The Bill as drafted ensures that the Part 1 measures will apply to a wide range of offences. That is to provide reassurance to our service personnel that the operational context will be taken into account, so far as it reduces a person’s culpability in the circumstances of allegations of criminal offences on historical overseas operations. I believe that we can take this approach in the knowledge that the prosecutor retains their discretion to make the appropriate decision on a case-by-case basis, including in respect of the most serious offences.
The Government have felt that, with the exception of sexual offences, all other crimes should be covered by the measures in Part 1. However, I am in no doubt as to the strength of feeling expressed by the Committee, which was neatly encapsulated by the noble and learned Lord, Lord Falconer, because I did not find too many supporters speaking up for my side of the argument. I undertake to consider with care the arguments that have been advanced and to explore if there is any way by which we can assuage your Lordships’ concerns. I hope that, in these circumstances, that will persuade the noble Lord, Lord Robertson, to withdraw his amendment and the noble and learned Lord, Lord Hope of Craighead, not to move his.

Lord Alderdice: I have received requests to speak after the Minister from the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord West of Spithead. I will call them in turn: first, the noble Baroness, Lady Chakrabarti.

Baroness Chakrabarti: I am grateful to the noble—

Lord Alderdice: Excuse me, Lady Chakrabarti, the Minister has not completed her speech.

Baroness Goldie: I apologise for the confusion.
There was a further amendment: Amendment 15. It deals with Clause 6(6), which is the delegated power provision. That provision is there to ensure that the Government are able to respond to new developments and fresh concerns that may emerge in relation to potential offences in future overseas operations without the need to seek primary legislation every time a change is required.
Legislation that confers such a power to amend the list in the schedule to an Act is not unusual. Schedule 1 lists the offences excluded from the requirements set out in Clauses 2, 3 and 5, and the power is limited to amending this list of offences, so it has a very narrow scope. It is also not unusual that any exercise of the power to amend the schedule to an Act be subject to the affirmative procedure before any regulations can be made.
The noble and learned Lord, Lord Falconer, and the noble Lords, Lord Thomas of Gresford and Lord Tunnicliffe, have been supportive of this amendment. Its aim seems to be to further narrow the scope of the power in response to the concerns raised by the Delegated Powers and Regulatory Reform Committee.
I believe, however, that the concern over the power contained in Clause 6(6) has possibly arisen from the wider concerns regarding the requirements set out in Clauses 2, 3 and 5. I have tried to allay these concerns, and I have detected a growing acceptance that the Bill does not represent an absolute bar to future prosecutions of serious crimes. The delegated power will allow future Governments to adapt Part 1 of the Bill according to the lessons they may learn from overseas operations in future. To limit the scope so that offences can only be added to Schedule 1, as the amendment would wish, could have an impact on the Government’s ability to implement the lessons learned and adapt to what is likely to be an evolving operational landscape.
The power already has a very narrow scope and its use will still require the express approval of both Houses of Parliament. In these circumstances, I urge noble Lords to not move this amendment.

Baroness Chakrabarti: My Lords, I am grateful to the Minister for what I can call only a predictably clear and gracious response. Because the Minister has agreed to reflect on this evening’s debate and consult her colleagues thereafter, I will just press her for a moment longer on the distinction between sexual offences and torture in particular, not with a view to further back and forth this evening but in the hope that it might influence her discussions with her colleagues.
The last 20 years have taught us that when torture is practised as a weapon of war, sexual torture is often one facet of that torture. It is not a nice thing to discuss. The other side of the coin is that of false allegations and clouds hanging over innocent and brave members of Her Majesty’s forces. Our Armed Forces, when overseas, can be as easily subject to false allegations of sexual offences as to false allegations of torture or any of the other offences that are not barred from the presumption against prosecution in the Bill.
If this is not about false allegations, there must be, as I understand the rationale, some kind of thinking, perhaps at the Ministry of Defence or elsewhere, that  because our Armed Forces are engaged in violence, there is some kind of fine line, or borderline, between the violence in which we understand they are engaged and torture. If that is the case, I find it very troubling indeed. Are we back in the Bush White House? Are we back with the legal advice that it is not torture when it is enhanced interrogation, for example?
It seems to me that international law and our own ethical and legal norms are very clear on the distinction between the kind of violence that is sadly necessary in war situations and genocide, crimes against humanity and torture. There is not a borderline against torture, and that tacit acceptance of a grey area is just the kind of thinking that got people into such difficulties on both sides of the Atlantic over the last 20 years. So I humbly ask the Minister, in the spirit of genuinely trying to improve this, to examine that distinction between sex and torture, and sexual torture and other forms of torture, in particular, when she goes back to her colleagues in the department and elsewhere.

Lord Alderdice: Does the Minister wish to respond?

Baroness Goldie: Yes. I listened very carefully to what the noble Baroness said, and I undertake to look at her contribution in detail.

Lord West of Spithead: My Lords, I thank the Minister for a very clear exposition of how one can get around some of these difficulties. I am delighted that she is going take this back and look at it, but I ask her to ask her officials: what are the benefits for the UK of excluding these from the list? What are we gaining by that? I used to find quite often, when I was standing at the Dispatch Box for three years, that when I prodded in that way, I would find that there were no benefits, but that they were defending their position wonderfully. I am not asking for an answer now, but can she prod that to see what benefits we actually get by not having those listed?

Baroness Goldie: Again, I undertake to look carefully at the noble Lord’s remarks.

Lord Robertson of Port Ellen: My Lords, I too thank the Minister for her gracious reply and for her willingness to take this matter away and reflect on this and other debates. I am glad that she recognises that, among the 800-odd Members of the House of Lords, the Government could not mobilise one single Member of the House to come and defend the position on this amendment. I am not surprised, and I can see the difficulty that she has in putting forward the argument.
I listened to see whether I could be persuaded by what she said—after all, some of the officials who used to work for me may still be there and producing the rationale for her this evening. However, to say simply that there is no bar to prosecution for war crimes, torture and crimes against humanity is to state only the technical argument. The fact is that the Bill gives a presumption against prosecution for war crimes, crimes against humanity and torture, and that is what is going to be noticed, not the technical argument that there is  no actual bar. There are barriers or, as the chief prosecutor of the ICC said, conditions laid down which will be well noticed.
Perhaps I may also say that when the Minister goes back to the Ministry of Defence and faces those who want to take a stand here, it might be worth avoiding the mistake that we make all too often in foreign relations, which is mirror imaging—looking at an issue through our eyes. In this case, if those who want to take a hard line would look at this issue through the eyes of the torturers, the war criminals and those who would perpetrate torture and crimes against humanity and see what sort of signal they are getting from the United Kingdom and its legal system, that would paint a different picture from the rather Panglossian view that just been put forward.
I feel strongly about this, more strongly than I have felt about many other things, because I feel for my country. I feel for its reputation and the credibility of our standing in the world and our reputation for adhering to agreements that we have come to. So all of us hope that the Minister will go away, think and expect others in the department and the Government to think again. On that basis, I am willing to withdraw the amendment, but I have no doubt that we will come back to the issue at later stages of the Bill.
Amendment 14 withdrawn.
Amendment 15 not moved.
Clause 6 agreed.

Lord Alderdice: We come now to the group beginning with Amendment 16. Anyone wishing to press this amendment or anything else in the group to a Division must make that clear in the debate.

Amendment 16

Baroness Ritchie of Downpatrick: Moved by Baroness Ritchie of Downpatrick
16: After Clause 6, insert the following new Clause—“Compliance with the Belfast Agreement 1998Nothing in this Part is to be construed in any manner that is non-compliant with the Belfast Agreement 1998.”Member’s explanatory statementThis amendment, and the amendments to page 8, line 12 and page 26, line 16 in the name of Baroness Ritchie of Downpatrick, ensure that the bill cannot be interpreted in a way that undermines the Belfast Agreement 1998’s requirement for the Government to complete incorporation into Northern Ireland law of the European Convention on Human Rights, with direct access to the courts, and remedies for breach of the Convention.

Baroness Ritchie of Downpatrick: My Lords, in moving Amendment 16 I will speak also to Amendments 25, 33 and 69 in my name and those of the noble Baroness, Lady Jones of Moulsecoomb, and the noble Lord, Lord Hain. The purpose of these amendments is to ensure adherence to the Good Friday agreement, as there is a fear among human rights organisations that this legislation could undermine the very essence of the agreement, which is central to the ongoing peace process in Northern Ireland and relations within the island of Ireland and between Ireland and Britain. The major fear centres on the fact that the  overseas operations Bill would limit direct access to the Northern Ireland courts and remedies for breaches of the European Court of Human Rights in relation to proceedings in connection with overseas operations. I have been contacted by the Committee on the Administration of Justice in Northern Ireland and Rights and Security International. They feel strongly about these issues.
Amendments 16, 25 and 33 have been tabled to ensure that the Bill cannot be interpreted in a way that undermines the requirement in the 1998 Belfast agreement for the Government to complete incorporation into Northern Ireland law of the European Convention on Human Rights, with direct access to the courts and remedies for breach of the convention. On a similar basis, Amendment 69 has been interpreted in a way that underlines the requirement in the 1998 Belfast agreement that, again, the Government should complete the incorporation into Northern Ireland law of the European Convention on Human Rights, with direct access to the courts and remedies for breach of the convention. It is important to emphasise that the Belfast/Good Friday agreement provided that—I shall quote directly:
“The British Government shall complete incorporation into Northern Ireland law of the European Convention on Human Rights with direct access to the courts and remedies for breach of the Convention.”
There is a fear that, as currently drafted, the Bill risks undermining the provision in a number of ways, hence the necessity for these amendments. I hope that the Minister will see their benefit and will consider accepting them tonight.
First, Part 1 introduces a presumption against prosecution for crimes committed by UK service personnel during overseas military operations from five years after the alleged offence took place. This extends to criminal offences that are also considered violations of the European Convention on Human Rights, such as torture, being committed by state officials—I refer in particular to Article 3. Under the ECHR, there is a procedural obligation to investigate, prosecute and punish acts of torture. The Belfast/Good Friday agreement requires that this procedural obligation be incorporated in the law of the Northern Ireland courts. Does the Bill as currently drafted undermine the agreement by making it harder, and in some cases impossible, in practice for breaches of the convention to be prosecuted?
Secondly, Part 2 imposes an absolute six-year longstop on civil claims for wrongful death or personal injury and claims under the Human Rights Act 1998, which incorporates the ECHR into the domestic law of the UK. This means that, beyond the six-year mark, no one may bring a claim alleging personal injury, wrongful death or a breach of the Human Rights Act arising out of an overseas military operation before the UK courts. As well as undermining the ECHR’s procedural obligations to investigate, prosecute and punish breaches of the convention, this directly undermines the Belfast/Good Friday agreement’s requirement that the UK ensure direct access to the courts and remedies of the convention. Noble Lords will understand that we do not want to see any further unravelling or tampering with the sound provisions of the Good Friday agreement.
This view is also supported by members of the Stormont House agreement model team, which includes academics from Queen’s University Belfast and the Committee on the Administration of Justice in Northern Ireland. In their briefing, they state:
“The 1998 GFA includes a UK-Ireland international treaty deposited with the UN that creates legally binding obligations for the UK. Among the provisions of that Agreement are that: ‘The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights … with direct access to the courts, and remedies for breach of the Convention …’ This commitment was legislated for through the Human Rights Act 1998. The commitment”—
I emphasise this—
“to incorporate the ECHR is not qualified to events in Northern Ireland”,
hence the need for these amendments.
The briefing continues:
“Clause 11 of the Overseas Operations Bill would amend the Human Rights Act 1998 to limit direct access to the NI courts and remedies for breaches of the ECHR in relation to proceedings in connection with overseas operations. Clause 11 would limit the courts’ powers of discretion over time limits for bringing claims, both by prescribing time limits and otherwise setting additional factors to which the court must have regard, which will have the purpose and effect of limiting access to the courts and remedies for victims.”
I know that this all sounds fairly technical, but it is crucially important that the agreement’s and the ECHR’s provisions are recognised.
Therefore, all these amendments are necessary to ensure that there is full compliance with the Belfast/Good Friday agreement and the European Convention on Human Rights, in the context of the courts in Northern Ireland, for any offences that may have been committed in overseas operations. I beg to move.

Baroness Chakrabarti: My Lords, I am pleased, as always, to speak after the noble Baroness, Lady Ritchie of Downpatrick, in support of her amendment, supported by the noble Baroness, Lady Jones of Moulsecoomb, and my noble friend Lord Hain, who is of course a former Northern Ireland Secretary.
I need not repeat the point about the importance of the Belfast agreement—it is well known to everyone in your Lordships’ House—or explain the matters that the noble Baroness in self-deprecating fashion referred to as “technical”. These are not of course just technical matters, because the Belfast agreement is an international treaty. However, I will pre-empt any doubts that some sceptics may have about the importance of these rather neat amendments.
The Belfast agreement is not just about what happens in Northern Ireland but about the law and the values in relation to all communities in Northern Ireland and indeed on the island of Ireland. That is why it is so important that, even though the Bill is about overseas operations—not about operations in Northern Ireland itself—it is about the law and the values as they apply to people who may seek redress in the Northern Ireland courts, even if it is in relation to overseas operations in which they served or potentially argued they were otherwise victims.
I urge noble Lords to take these amendments extremely seriously, not least in the context of the group we have just heard about. The Minister and I may disagree  about such things as whether I am right or wrong in my plain view that many aspects of the Bill violate the ECHR, but at least these amendments would allow where possible any wriggle room to be used for interpretation so that we do not fall foul of that precious agreement that has been so vital to maintaining relative peace for such a long time.

Lord Mackay of Clashfern: My Lords, these amendments are designed on the assumption that provisions in the Bill might be contrary to the human rights convention and, of course, the Human Rights Act. I regard it as 110% essential that the Belfast agreement is fully respected and implemented. I have therefore supported this amendment on the view that, since a question has been raised about it, it is right that it should be thoroughly checked and that, if necessary, these amendments should be inserted to make sure. I have my doubts as to whether it is necessary but I am all in favour of it being checked in detail by those who drafted the Bill, to make sure that, whatever happens, the Belfast agreement is not damaged in any way by the provisions in the Bill.

Baroness Suttie: This has been an interesting and important short debate. It has previously been made clear that the Bill does not deal with matters relating to Northern Ireland, but I trust that in her concluding remarks the Minister will none the less give full responses to the many important issues raised by the noble Baroness, Lady Ritchie, this evening. I believe that it is equally important that the Minister acknowledges that these amendments stem from several very real fears and anxieties.
The first of these fears is that, in their actions and behaviour over recent months, the Government have given cause for concern that they are seeking to water down or reinterpret the Belfast/Good Friday agreement. In her response to these amendments, I hope that the Minister can give some firm reassurances this evening that this is not the case. The second anxiety at the heart of these amendments is that it is somewhat unclear that the Government remain fully committed to the balanced and well-considered approach to legacy issues as set out in the Stormont House agreement. Given that it is now well over a year since New Decade, New Approach was published, can the Minister update the Committee this evening on the Government’s approach to legacy issues in Northern Ireland?
Given that the Minister is not from the Northern Ireland Office, I suspect that she may not be able to give a full response to my question on legacy, so I would be extremely grateful if it would be possible to receive a letter setting down in detail the answer to that question and arrange a meeting to discuss these matters on legacy in more detail.

Lord Tunnicliffe: My Lords, the Good Friday agreement is central to the ongoing peace process in Northern Ireland. We all have a vital role to play in safeguarding the Good Friday agreement and building on its promise, and we must ensure that this Bill, or any other Bill, protects it. However, the Government have demonstrated a reckless approach to the Good Friday agreement. We need only to consider  their actions with the internal market Act, which threatened the agreement and resulted in resounding international criticism, including from the new President of the United States.
The Good Friday agreement is one of Labour’s proudest achievements in office. The courage of the people and communities in Northern Ireland made peace happen and has allowed an entire generation to grow up free from conflict. We must build on it, not weaken its foundations. The amendments in this group aim to ensure that the Bill cannot be interpreted in a way that undermines the Good Friday agreement’s requirements for the Government to complete incorporation of the European Convention on Human Rights into Northern Ireland law.
Rights and Security International has said that the Bill risks undermining the agreement as the presumption against prosecution
“extends to criminal offences which are also considered violations of the ECHR, such as torture … Under the ECHR, there is a procedural obligation to … prosecute and punish”
these acts, and the Good Friday agreement
“requires that this procedural obligation be incorporated in the law of Northern Ireland.”
Does the Bill make it harder for breaches of the ECHR to be prosecuted? Rights and Security International has also said that the six-year longstop impacts on
“the Good Friday Agreement’s requirement that the UK ensure direct access to the courts”.
Have the Government received independent legal advice on the impact of the Bill on the Good Friday agreement or carried out their own impact assessment of the Bill on the agreement?
When considering Northern Ireland, we must also remember that the Bill does not cover operations in Northern Ireland as originally promised. Last month, the Leader of the House in the other place said that
“the Government will introduce separate legislation to address the legacy of the past in Northern Ireland in the coming months in a way that focuses on reconciliation, delivers for victims and ends the cycle of reinvestigations into the troubles in Northern Ireland”.—[Official Report, Commons, 11/2/21; col. 496.]
However, it is now exactly a year since the Northern Ireland Secretary made a statement promising the same. What is causing the delay? When will it be published? The Good Friday agreement must endure, must be strengthened and must continue to guarantee peace. Whether it is in this Bill or any other, the aims must be supported, not undermined.

Baroness Goldie: My Lords, I thank the noble Baronesses, Lady Ritchie of Downpatrick, Lady Suttie and Lady Chakrabarti, and the noble Lord, Lord Tunnicliffe, for their contributions. These amendments seek to ensure that the Bill cannot be interpreted in a way that undermines the Belfast agreement. As they all indicated, the Belfast agreement was, of course, an incredible achievement, and the Government remain fully committed to the agreement and the constitutional principles it upholds, including the institutions it established and the rights it protects. The agreement has been the foundation for political progress, peace and stability in Northern Ireland over the last 22 years, and it will be protected going forward.
I listened with interest and care to my noble and learned friend Lord Mackay of Clashfern, and I reassure him that nothing in the Bill could be interpreted as undermining the commitments contained in the Belfast agreement, and nothing that would diminish the essence of the protections that the Human Rights Act currently offers to the people of Northern Ireland. My noble and learned friend may be aware that the UK has already fulfilled the commitment under the agreement to incorporation by enacting the Human Rights Act 1998, which provides for direct access to the domestic courts to vindicate convention rights, and the Northern Ireland Act 1998, which provides that the Northern Ireland Assembly can legislate only in a way that is compatible with convention rights and that Northern Ireland Ministers must act compatibly with the convention rights. I would say that the measures in this Bill are considered to be compatible with the convention rights.
I reassure noble Lords that the Bill’s provisions do not undermine the UK’s commitment to human rights and to the ECHR. We fully intend to maintain our commitment to our obligations under international humanitarian and human rights law, including the United Nations Convention against Torture.
The noble Baroness, Lady Suttie, raised legacy issues in Northern Ireland. The Northern Ireland Office is currently addressing that matter. It is not within my ministerial responsibility, but my noble friend Lord Younger will undertake to communicate with her, and I think he would also be happy to communicate with the noble Lord, Lord Tunnicliffe. These amendments were interesting to explore but are not required, and it is on that basis that I urge that Amendment 16 be withdrawn.

Baroness Ritchie of Downpatrick: My Lords, I thank all who participated in this short but timely and important debate: the noble Baronesses, Lady Chakrabarti and Lady Suttie, the noble and learned Lord, Lord Mackay of Clashfern, the noble Lord, Lord Tunnicliffe, and the Minister.
The noble Baroness, Lady Chakrabarti, underlined the importance of an international treaty, the importance of the Belfast agreement in terms of the laws and values relating to communities in Northern Ireland, and the need for the courts in relation to overseas operations. The noble and learned Lord, Lord Mackay of Clashfern, wanted to make sure that the Belfast agreement was respected in the Bill, and the Minister seemed to indicate that that was the case, although I have certain doubts and I want to reflect further on this.
The noble Baroness, Lady Suttie, raised important issues about the need for a balanced approach to the agreement. The fact that the Belfast/Good Friday agreement was balanced allowed people in Northern Ireland to enjoy relative peace, which needs to be built on, and provided for those political institutions, which are thankfully working. She and the noble Lord, Lord Tunnicliffe, raised very important issues to do with legacy matters.
The Secretary of State in the other place made a Statement on 18 March 2020 that basically said that the Government were abandoning the Stormont House  agreement in favour of other issues. We have never seen that legislation, but I urge the Minister and her colleagues in the Northern Ireland Office to adhere to the Stormont House agreement because it gives the best resolution for legacy issues in Northern Ireland.
In her very gracious comments, the Minister said that the Government were fully committed to the Belfast agreement. Like the noble Lord, Lord Tunnicliffe, I question that because we saw attempts to unravel it through the passage of the UK internal markets Act and we have seen further attempts to unravel the Northern Ireland protocol and undermine the agreement by others in the Government. I simply ask at this stage that those issues be properly dealt with through the UK-EU mechanisms already available and not through unilateral approaches. I take the basis from the Good Friday agreement itself; the principles of consent and agreement are vital for everything.
The Minister said that nothing in the Bill would diminish human rights in relation to overseas operations. Quite frankly, I would like to go away and reflect on that before considering whether to bring back amendments on Report. I remind the Committee that the commitment to incorporate the European Convention on Human Rights is not qualified by events in Northern Ireland, hence the need for these amendments. Again, I emphasise that it is important that the Bill as drafted would limit direct access to the Northern Ireland courts and remedies for breaches of the European Convention on Human Rights in relation to proceedings in connection with overseas operations.
In view of that and of the fact that the Minister in her albeit gracious comments has not adequately addressed the issue, while I beg leave to withdraw Amendment 16 this evening, I will further reflect on bringing my amendments back on Report.
Amendment 16 withdrawn.
Clause 7 agreed.
Amendment 17 not moved.

Lord Lexden: My Lords, we now come to Amendment 18. Anyone wishing to press this amendment to a Division must make that clear in debate.

Amendment 18

Lord Falconer of Thoroton: Moved by Lord Falconer of Thoroton
18: After Clause 7, insert the following new Clause—“Time limit for commencing proceedings for minor offencesAfter section 60 of the Armed Forces Act 2006 insert—“60A Time limit for minor offences(1) A person may not be charged in respect of a minor offence carried out in the course of overseas operations after the end of six months beginning with the day on which the offence is alleged to have been committed. (2) In this section—“minor offence” means—(a) any offence committed by a member of a regular or reserve force which would be in the jurisdiction of the Service Civilian Court if committed by a civilian; (b) any offence capable of being dealt with at a summary hearing under section 53 or 54;“overseas operations” has the meaning given in section 1(6) of the Overseas Operations (Service Personnel and Veterans) Act 2021.””

Lord Falconer of Thoroton: My Lords, this is a self-contained point rather outside the mainstream of the other issues that we have been dealing with, but an important amendment trying to provide a degree of certainty to military personnel engaged in overseas operations. The amendment seeks to provide that, where a minor offence is committed that would be triable within the Armed Forces criminal justice system, there should be a six-month time limit from the date the offence is committed for bringing proceedings. So, after six months have elapsed from the date of the offence, if no proceedings have been brought it cannot be prosecuted. This provision mirrors Section 127 of the Magistrates’ Courts Act 1980 and reflects the sensible proposition that, in relation to minor offences, you should know where you stand.
I am not sure whether the drafting has precisely achieved this; I would be interested in the Minister’s views on whether we need to make any changes. However, I am absolutely sure that the principle is sound: in relation to minor offences, there should be a shortish time limit of six months, so that the system is not cluttered up with old offences of a certain lack of severity. I beg to move.

Lord Lexden: My Lords, the noble Baroness, Lady Chakrabarti, whose name is next on the list, has withdrawn so I call the next speaker, the noble Lord, Lord Thomas of Gresford.

Lord Thomas of Gresford: My Lords, I have little to say in respect of this amendment. I believe that summary offences should be dealt with summarily, and that is what this amendment seeks to achieve.

Baroness Goldie: My Lords, it is interesting that we conclude our consideration of Part 1 of the Bill with a genuinely interesting proposition from the noble and learned Lord, Lord Falconer of Thoroton, so neatly encapsulated by the noble Lord, Lord Thomas of Gresford.
The amendment seeks to introduce, via a new section to be inserted in the Armed Forces Act 2006, a six-month limitation period between an offence being committed or discovered and any proceedings being brought, where certain conditions are satisfied. As I understand the proposal, the amendment would create a six-month limitation period for all offences capable of being dealt with at a summary hearing under Section 53 of the Armed Forces Act 2006. It is worth observing that this category of offence includes a large number of matters that are specific to a military context.
Section 53 covers, for example, the offence of being absent without leave, under Section 9 of the Armed Forces Act 2006; the offence of disobedience to lawful commands, under Section 12; the offence of contravention of standing orders, under Section 13; and the offence of disclosure of information useful to an enemy, under Section 17. These, and many more offences like them,  are vital to maintaining discipline and operational effectiveness in the Armed Forces. The amendment proposes that none of these should be capable of leading to punishment after six months. With the greatest respect to the noble and learned Lord, I think that that is unwise.
During any investigation, it is not always clear at the outset what the charge will be, but this is made harder for investigations on overseas operations, particularly where the injured person or witness is a local national. As I have already set out in response to other investigation-related amendments, investigations on overseas operations are subject to greater complexity than those conducted back in the UK, and delays can occur. However, placing what is actually quite a short time limit on investigations is unhelpful. In my view, we should not be seeking to do anything that would fetter the investigative decision-making of the service police. A time limit in these circumstances would do just that.
Even the most minor offences take on a greater significance in an operational environment and, if we reflect on some of the offences to which I have just referred, I think your Lordships would understand the import of that. A minor offence is not necessarily a simple matter that can be dealt with quickly by a commanding officer, and minor offences committed against local nationals can have a disproportionate effect in an operational setting.
I think that this amendment is modelled upon the provisions that exist in relation to summary-only matters in the Magistrates’ Courts Act 1980, which is why I find it problematic. The Magistrates’ Courts Act codifies the procedures applicable in the magistrates’ courts of England and Wales. This legislation is not written to accommodate the extraordinary demands made of a system operating in an operational context where, as I have already said, delays can sometimes occur as a result. Applying civilian timescales to an operational context is therefore not appropriate.
I appreciate that the amendment has been offered in good spirit by the noble and learned Lord. I thank him for the breadth of thought in investigating that aspect, but I urge him to withdraw the amendment.

Lord Falconer of Thoroton: I am grateful to the Minister for her very careful reply. I understood her to make two particular points: first, that six months may be too short, particularly in an overseas operational environment and, secondly, that it may not be appropriate in dealing with certain sorts of military offences, for example, disobedience to orders, particularly in an overseas context.
I hear what the noble Baroness has said and I will think very carefully about two things. First, does one need a longer period and, secondly, should one exclude certain specifically military offences? However, if it were possible, I would be keen to find a way forward on this because although the points she makes have some degree of validity, I also think that for comparatively minor offences it is disproportionate for military personnel still to be investigated for some months or even years after the comparatively minor offence has been allegedly committed. Of course I beg leave to withdraw the amendment.
Amendment 18 withdrawn.

Lord Lexden: My Lords, we now come to the group beginning with Amendment 19. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.

  
Clause 8: Restrictions on time limits to bring actions: England and Wales

Amendment 19

Lord Falconer of Thoroton: Moved by Lord Falconer of Thoroton
19: Clause 8, page 6, line 8, after “forces,” insert “except where it would be inequitable for an action in respect of a personal injury or death which could have occurred in the United Kingdom to be subject to a different time limit if it occurred overseas,”Member’s explanatory statementThis amendment ensures that a court can disapply the civil longstop if the same equipment or cause of negligence results in injury or death in overseas operations as in the UK.

Lord Falconer of Thoroton: We move on to a different part of the Bill, which seeks to impose more rigorous time limits for bringing civil actions, whether in accordance with the ordinary law of tort or contract, or under the Human Rights Act. Although I am slightly oversimplifying, the Bill essentially seeks to impose a six-year unextendable deadline for bringing civil claims in respect of the conduct of the military, except where knowledge occurs after the six years, in which case there is a further 12-month extension. This is in contradistinction to the normal position whereby a claim would be brought not arising out of overseas operations where the court would have an ability to extend the time for bringing a claim if it were equitable to do so.
In these amendments, we focus on two particular circumstances. First, where a claim is being brought by someone within the military against, in effect, the Government for a breach of human rights or a tortious claim, we take the view that we should not be providing additional limitation hurdles in respect of military personnel bringing claims against the MoD—for example, for the negligent provision of defective equipment. I should be interested to hear why the Government think that there should be such a limitation. As a subgroup, primarily dealing with military personnel but able to deal with others also, if, in relation to an identical claim that had occurred in the UK, somebody could bring a claim and have the limitation period extended if it were equitable to do so, we cannot see any reason why in identical circumstances such a claim could not also be brought, even though the circumstances or damage arose in the course of overseas operations.
For example, if the Ministry of Defence provided defective equipment to a soldier and, as a result, the soldier suffered serious injury in an exercise on Salisbury Plain, why should a soldier who suffers precisely the same injury while on an overseas operation because of the negligent provision of defective equipment by the Ministry of Defence have a shorter and harsher limitation period than the soldier who was injured in precisely the same circumstances for precisely the same reasons  in an exercise on Salisbury Plain? For example, they were both injured not necessarily because of the activities of enemy insurgents against them but because all the forms of transport provided were defective in a way that was the fault of the Ministry of Defence. The injury would have occurred whether one was driving along a road in Wiltshire or a road in Iraq or Afghanistan. It is unfair that there should be different limitations for precisely the same sorts of injury.
Two questions arise on this group of amendments. First, why should there be different limitation periods for the military bringing claims against the Ministry of Defence? Secondly and separately, even if there is a reason for that, why should there be a different limitation period for precisely the same injury, the only difference being that it was caused in the course of overseas operations rather than at home, for example? We are aware of the problems that have arisen in relation to many claims being brought—and many failing—arising out of overseas operations. We are all aware of those circumstances, but we are very concerned that, in trying to deal with that multiplicity of claims, the Government are unfairly depriving military personnel of their legitimate right to protect their rights against the Ministry of Defence.
It is very important that the limitation period be fair for claims by military personnel because, for a whole variety of reasons that those engaged in the military will be aware of, there may be very good reasons why a member of the military takes a long time to discover either that they could bring a claim or that they are in an emotional or mental position to bring a claim because of their experiences. We think these provisions are very detrimental and unfair to military personnel and require amendment. I beg to move.

Baroness Smith of Newnham: My Lords, at this time of the evening it would be very easy simply to agree with everything the noble and learned Lord, Lord Falconer of Thoroton, has just said and be happy to move on, but that would do a disservice to our service men and women and veterans, because the points these amendments speak to and the words the noble and learned Lord has just uttered are extremely important. It is surely appropriate that we treat our service personnel and veterans with respect, and that they should not be disadvantaged because they have been service men and women.
Clearly, incidents and dangers can happen in the field of battle that will not be legislated for in a conventional civilian sense, but there might be other issues—hearing loss, for example—associated with having been in the Armed Forces which become clear only later. It seems very strange, as the noble and learned Lord has pointed out, that people should have different rights according to whether the problems arose while based in the UK or on overseas operations. Can the noble and learned Lord, Lord Stewart, who appears to have taken over from the noble Baroness, Lady Goldie, say what work the Government have done in looking at the potential ramifications of this limitation?
This Bill has been put forward by the Government as something supposed to help our service men and women, but this limitation seems to limit their rights.  I know the Minister will have been told that it is very important that cases are brought swiftly and issues are dealt with promptly, that it is in everybody’s interest to do so and that delaying things is in no one’s. But neither is curtailing people’s rights.
The Royal British Legion sent a briefing picking up in particular on the Armed Forces covenant, quoting the point:
“Those who serve in the Armed Forces, whether Regular or Reserve, those who have served in the past and their families, should face no disadvantage compared to other citizens in the provision of public and commercial services … In accessing services, former members of the Armed Forces should expect the same level of support as any other citizen in society.”
Assuming that Her Majesty’s Government still support the Armed Forces covenant, can the Minister explain how the proposals in Part 2 of the Bill live up to its commitments? Can he tell us what additional thoughts the Government might be willing to have on looking again at this limitation?

Lord Lexden: My Lords, the noble Lord, Lord Lancaster of Kimbolton, has withdrawn from the debate, so I call the noble Lord, Lord West of Spithead.

Lord West of Spithead: My Lords, I shall speak to Amendment 29 in support of my noble friend Lord Tunnicliffe and the noble and gallant Lords, Lord Boyce and Lord Stirrup. The de facto six-year time limit for claims being brought against Ministers and the MoD arising from active service abroad seems at first sight far from protecting our people, but rather reducing the rights of individual service personnel. Those injured as a result of negligence during overseas operations, unlike in the UK, will have less protection under the law. Veterans and service charities, as was mentioned by the noble Baroness, Lady Smith of Newnham, are very worried and have been taking quite a lot of notice of this. The British Legion and other charities are very concerned.
To keep this short, it seems that the Bill seeks to protect the MoD from claims by our servicemen, rather than trying to look after them. Again, I am absolutely sure that that is not the intention, and this amendment tries to rectify that problem.

Lord Craig of Radley: My Lords, I shall speak to Amendment 29 and I support this important safeguard for service personnel. As has been mentioned, not all disabilities are immediately self-evident. Medical advances and associating clinical problems with mental or slowly developing illnesses are helping to explain and track the trigger to events not just in the recent past, but over periods measured in years, not months. Should a claim be considered, it should not be dismissed on some arbitrary timeline. Justice for service personnel, both serving and veterans, demands that their interests should be protected.
The changes made in the past decade, replacing the tried and tested Pensions Appeal Tribunal, which had its origins in 1919, with new arrangements, have been the cause of much anxiety at times. Indeed, I put down an annulment Motion to a major tribunal revamp in 2008 that sought to disband the Pensions Appeal  Tribunal of England and Wales and move all its military pension and disability work into a civilian social entitlement chamber. This was widely condemned by those with experience of this type of work, by the Royal British Legion and other charities which help with the preparation and submission of such claims. My Motion was debated and, happily, the Government then agreed that the Pensions Appeal Tribunal work should be given its own separate chamber in the restructured tribunals.
So it is not only that claims by service personnel and veterans should not be arbitrarily time-limited: as important is that the tribunal arrangement in place to deal with claims is respected and trusted, as was the former Pensions Appeal Tribunal, with its long experience and proven track record in this field. I hope the Government will acknowledge the importance of that, as well as Amendment 29.

Lord Faulks: My Lords, the scheme of this part of the legislation creates a long stop of six years, subject to date of knowledge provisions which provide for an additional one year. It also specifies certain additional factors to be taken into account under the provisions of Section 33 of the Limitation Act 1980.
Limitation law tends to be much more complex an area than one might first expect. In a sense, all limitation periods are inevitably arbitrary. The law has sometimes struggled to find ways of mitigating hard edges. I have had the privilege of being involved in a number of cases at appellate level about the law of limitation. The concept of a date of knowledge has proved quite challenging, even at that level. It might be worth reminding the House that the primary limitation period for personal injuries is three years, and for claims under the Human Rights Act it is one year. There is a six-year limit for claims under breach of contract—that is unlikely to arise in these circumstances. For cases of personal injuries or under the Human Rights Act, there can be extensions. For personal injuries, the date of knowledge can extend the period, and there is also discretion to disapply the limitation period. The discretion is unfettered, although there are certain matters identified in the 1980 Act which have to be taken into account.
Why, therefore, is there a long-stop in this Bill? It should be made clear that this is not the only area where there is a long-stop; different periods apply with different courses of action. The particular challenge, as I understand it, of overseas operations is that they come to an end and, when they do, evidence can disappear. Personnel leave the theatre; they go on to different activities, or to civilian life or retirement. If sometime later a claim is made by an individual, perhaps lacking any corroboration, it might be difficult to rebut. We all know of the many bogus claims there have been. Memories of events inevitably fade.
To be honest, I am not quite sure that many claims—or any claims—which would now be dismissed if this were the law would have succeeded. A late claim, absent a postponed date of knowledge, would probably not succeed because the courts do not exercise the discretion to disapply lightly. Many of the reasons for  a long-stop would, in fact, be the very reasons that result in courts refusing to extend primary limitation periods. As with Part 1 of this Bill, we, as parliamentarians, need to respond appropriately to the vexatious litigation the military has had to put up with. This long-stop, on the face of it, seems a proportionate response. Amendment 19 does not seem to me to reflect the distinction between operations at home and those that take place overseas.
The other amendments are more difficult. They seek to carve out an exception for service personnel. I listened carefully to what noble Lords have said about the anxiety that this is causing in some quarters. I suspect that this was an unintended consequence and that really the protection of service personnel is the protection from them being in receipt of a knock on the door, many years later, being asked to give evidence or to respond to some possibly spurious claim in a theatre of war that has long since stopped functioning. That might be what really lies behind this, rather than denying service personnel normal rights under a limitation period. I should say that six years is quite a long time for a long-stop period to apply.
As for the date of knowledge provisions, they have now been explained by the courts to be sensitive to the fact that there will sometimes be delays—understandable delays—in bringing claims. For example, suppose a claimant were to contract a disease—say, mesothelioma, which was caused by exposure to asbestos. Many years later, there is no difficulty in recovering, because the individual would simply not know that they had in their body the potential to contract mesothelioma. Similarly, if there is some mental inhibition which prevents them being aware of the problem, that too is reflected in the way the law approaches date of knowledge. There have been a particular number of cases that have governed the position of people who had been abused in childhood and only later realised what had happened and the extent of the problems. The law does not treat understandable delay harshly. That would be the same whether the individual was in the military or not.
I am concerned that the military should feel in any way disadvantaged, because that would, of course, run contrary to the overriding philosophy that lies behind this Bill. For the moment, I look forward to being reassured by the noble and learned Lord; I welcome his late arrival to the Front Bench to respond to this debate.

Lord Boyce: My Lords, I speak to Amendment 29 and the subject of a six-year time limit being imposed by the Bill on those who have been engaged on overseas operations in their ability to bring any grievance against the MoD. This would have the perverse effect of limiting individual service personnel’s rights by restricting their access to legal remedies for harms caused by their employers, while it would not apply to their counterparts not engaged on overseas arrangements. Surely it must be beyond argument that such a situation should not be allowed, and I thus support Amendment 29.

Lord Lexden: My Lords, the noble Baroness, Lady Chakrabarti, who is next on the list, has withdrawn, so I call the noble and gallant Lord, Lord Stirrup.

Lord Stirrup: My Lords, I will speak to Amendment 29, to which I have attached my name. Its purpose is to ensure that service personnel are not debarred by time from pursuing claims against the Government for harm suffered on overseas operations. Of course, the purpose of the Bill is to provide reassurance to those very personnel that they will be to some degree protected against malicious proceedings, so it seems rather perverse that the Bill should also seek to prevent them gaining redress for harm that they themselves suffered. The Government have asserted that such an outcome is not their intention, and of course I accept that. However, the question is not the present Government’s intention but the potential consequences of the Bill as worded. It seems that one consequence might well be to deprive a number of serving personnel or veterans of their right to pursue a claim against the Government.
Part of the Government’s response to this concern is to stress the small numbers involved. They say that some 94% of service personnel and veterans who brought claims relating to events in Iraq and Afghanistan did so within six years. Are we then to assume that, had the proposed timescale been applied to them, the Government believe that it would have been acceptable for the other 6% to lose the opportunity to pursue their cases? The Government also say that the vast majority of cases relate to events in the UK, not to overseas operations. That may be so, but to argue that only a small number of service personnel would suffer injustice does not seem a respectable position for a Government to take at any time, let alone in a Bill that is supposed to provide support and reassurance to those people.
This timescale is very different from the one proposed in Part 1. The latter, as I observed earlier, does not introduce a significant legal watershed. Complaints can still be brought to prosecution, subject to certain tests that ought to be applied with or without the Bill. The time limit placed upon complaints brought by service personnel or veterans is of a very different character. It is not a high bar—it is an impassable wall. In support of this absolute limit the Government have prayed in aid statements from the courts about the need for limitation periods in civil litigation to ensure legal certainty and finality and to avoid the need to adjudicate on events so far past that memories and evidence become too unreliable. Of course I see the sense in that, but why six years? Upon what empirical data is such a time period based?
I listened very carefully to the remarks of the noble Lord, Lord Faulks, but since the expiry of the proposed time limit would have such dramatic legal consequences, there seems to be a powerful argument for a much longer period in this case. That which is proposed in the current Bill is too short, too disadvantageous to serving personnel and veterans, and should be reconsidered.

Lord Thomas of Gresford: My Lords, like my noble friend Lady Smith and others, I am concerned that there should not be a different principle of limitation for service personnel for injuries received as the result of overseas operations as opposed to those injured while they are serving in the United Kingdom. However, I want to also speak up for the civilians in the country where the overseas operations took place.
I am not naive about this. I very much recall a court martial in Colchester, in 2005, for which a lady was brought from Iraq with a complaint that a British soldier had stripped her naked in the street and had caused her huge embarrassment. She went into the witness box, took the oath on the Koran and then turned to the judge and said, “Now I have taken the oath on the Koran, I have to tell the truth. I made it all up.” There were many complaints that were made up at that time.
At the time of the Baha Mousa trial, Mr Phil Shiner was wandering around trying to infiltrate our discussions, and he always had someone taking a note of the evidence as it emerged, which he subsequently misapplied. I am very glad that he was struck off by the Law Society.
That, however, should not prevent, in an appropriate case, a claim for damages going forward if it is equitable to do so. The noble Lord, Lord Faulks, expressed with considerable authority the complexity of this area of law and the difficulties that exist in any event—never mind in overseas operations.
There are valid claims. I put in a Written Question on 2 June last year. The Answer told me that, since 2003, there have been
“1,330 claims for damages relating to alleged misconduct … The claims … focus predominately on alleged unlawful detention but many incorporate allegations of mistreatment”.
The Ministry of Defence has paid out £32 million in respect of these allegations, and says that it does not pay out without consideration and finding the claim valid. It meets the bill, which does not fall on the soldier in question.
The practice of the court is not to extend to extend limitation periods easily, and that is a particular concern where valid claims are coming forward. When the court considers whether to extend the limitation period, it investigates all the circumstances. It is very difficult for a poor person in a foreign country to bring a case, and as the noble Lord, Lord Faulks, pointed out, it is not easy to extend the limitation period. Date of knowledge is frequently an issue. Sometimes it almost seems as if when a court hears an application for an extended limitation period it will be granted on the nod. But that is not the case: it is a difficult thing to argue. I am, therefore, in favour of these amendments, and I look forward to seeing how they appear on Report.

Lord Stewart of Dirleton: My Lords, I begin by addressing Amendment 29, which seeks to carve out claims from service personnel and veterans from the limitation longstops in the Bill. I have to be clear from the outset: such a carve-out would amount to an unjustifiable difference in treatment between different categories of claimants and would therefore be likely to be incompatible with the United Kingdom’s obligations under the European Convention on Human Rights.
A carve-out would also have very limited practical impact. The noble and gallant Lord, Lord Stirrup, anticipated the statistic that I am about to quote. Analysis of previous claims has indicated that the vast majority of claims—around 94% of relevant claims brought by service personnel or veterans in connection with overseas operations—have been brought within six years, which is the period of the longstop.
In answer to the noble and gallant Lord, it must be the case that many of the remaining 6% will come under the state of knowledge provisions, whereby the period of limitation will commence at the point at which the individual has become aware of their condition. The noble Baroness, Lady Smith of Newnham, adverted to this in her submission when she spoke about hearing loss, a condition that might well become manifest outwith the period of six years from the point at which it had been incurred or commenced. The same might equally be said for post-traumatic stress disorder.
The purpose of the limitation longstops is not to stop service personnel from bringing claims but to stop large-scale and out-of-time litigation from being brought in relation to military actions on overseas operations. The current legal framework allows claims to be brought many years after the events in question, which puts our service personnel at the mercy of being called upon to provide evidence about historic events, with all the harm and anxiety that that risks causing them. I gratefully adopt the words of my noble friend Lord Faulks in relation to the longstop and to the fact that the harm that is envisaged may be caused to a member of the Armed Forces involved in operations who is approached much later after they have left theatre and retired, after a period of time has elapsed in the course of which they have hoped to put distressing matters behind him, or indeed her.
As well as reducing the threat of being called to give evidence of historical events many years in the past, these longstops will also help to reduce the likelihood of historic criminal investigations many years or decades after the event. This is because the longstops are likely to encourage civil claims to be brought sooner in future, and any associated criminal allegations will therefore also be investigated sooner. This reduces the risk of criminal investigations arising many decades later as a result of allegations made in civil claims.
I have mentioned that excluding claims from service personnel from these measures is likely to be incompatible with our obligations under the ECHR. That is because there would be an unjustifiable difference in treatment between different categories of claimants—for example, between service personnel and the Ministry of Defence civilian personnel who deploy alongside them on overseas operations. All the difficulties that arise from claims connected with overseas operations in relation to the availability of documentary evidence and accurate memories apply in the same way to claims from service personnel as they do to claims from other individuals. There is therefore no objective or functional reason why claims from service personnel and veterans should be excluded from the longstops.
Equally, I reassure the House that these measures do not break the Armed Forces covenant. Again, I have particular regard to the submission made by the noble Baroness, Lady Smith of Newnham. The covenant was designed to ensure that service personnel and veterans do not face any disadvantage in their day-to-day lives when compared to civilians in the same position. The covenant thus ensures that all service personnel and veterans are treated in the same way as civilians in the same position. The longstops in Part 2 of the Bill  apply equally to any claimants bringing claims connected with overseas operations against the Ministry of Defence, whether they are military personnel, civil servants, contractors or local nationals. There is therefore no disadvantage in being a member of the Armed Forces in relation to these measures because everyone who has deployed on an overseas operation is treated equally.
I echoed the noble and gallant Lord, Lord Stirrup, in his citation of the figure of 94% of service personnel claims connected with overseas operations being brought within six years. Those claims are also only a small subset of all claims made by service personnel against the Ministry of Defence. If claims are not connected to an overseas operation, as most claims are not, then they will not be impacted in any way by the measures in the Bill. I am therefore clear that the benefits of the limitation longstops to service personnel far outweigh any perceived disadvantages.
To make sure that as many service personnel as possible understand these measures in future, we will aim to ensure that the Armed Forces and the wider Armed Forces community are made aware of the new measures. In any event, any potential unfairness faced by service personnel as a result of the imposition of an absolute time limit is mitigated by those date of knowledge provisions to which we have made reference.
Carving their claims out of Part 2 of the Bill will therefore have little practical impact but would likely make these measures incompatible with our ECHR obligations. So, while the adverse impact on service personnel is considered to be very low, the benefits they will see from the reduced likelihood of being investigated or called to give evidence many years into the future are significant. I therefore recommend and urge that Amendment 29 be withdrawn.
I now move to Amendments 19, 46, 49, 51 and 53. These amendments would mean that, where an injury or death which occurs in connection with an overseas operation could have also occurred in the UK, a claim relating to that injury or death would not be caught by the limitation longstop applicable to personal injury and death claims brought in England and Wales. The example given by the noble and learned Lord, Lord Falconer of Thoroton, was injuries caused by a particular type of vehicle: why is it different in theatre from an accident with the same vehicle being driven down a road in Wiltshire?
However, I submit that the effect of these amendments is not clear. What is clear is that they would introduce unnecessary and undesirable complexity. For example, how will the courts assess what incidents could also reasonably have occurred in the UK? The answer is potentially limitless, meaning that the longstop would fail to operate as intended. It also seems that the burden of the amendments fails to take into account the specific characteristics of overseas operations, recognition of which informs this Bill throughout.
Part 2 of the Bill is trying to achieve greater certainty for service personnel who are deployed on overseas operations. In so doing, the Bill recognises that overseas operations are different from other types of deployment, including in the United Kingdom. The situation faced by service personnel on overseas operations where they are under attack or face the threat of attack or  violent resistance is not comparable with being on exercise in the United Kingdom. This is why this Bill specifically covers overseas operations, and it would be disingenuous to compare the different environments that service personnel face in a hostile environment with those in the United Kingdom.
Furthermore, the amendments might have very little practical effect on claims brought by service personnel and veterans. I have already made the point that the vast majority of service personnel and veterans bring relevant claims within six years from either the date of the incident or the date of knowledge. We believe that six years is a reasonable period of time for bringing a claim. In an answer to a submission made in the course of the debate, it is one which is in accord with provisions in domestic law and in the law of other nations. The benefits of these amendments would be limited, but they would add an unnecessary and undesirable layer of complexity and the courts would be obliged to contend with that. They would thus be at odds with the principle of greater legal clarity which the Bill seeks to introduce.
On the subject of time limits and particularly in reply to the noble Lord, Lord Thomas of Gresford, the courts are of course sensitive to pleas of state of knowledge. Again, I respectfully echo the submission of my noble friend Lord Faulks on that matter. So, while thanking all noble Lords who have contributed to this debate, I recommend that these amendments are not taken forward.

Lord Falconer of Thoroton: I am very grateful to the noble Baroness, Lady Smith, my noble friend Lord West of Spithead, the noble and gallant Lords, Lord Craig of Radley, Lord Stirrup and Lord Boyce, and the noble Lord, Lord Thomas of Gresford, all of whom supported this amendment. I am also struck by the fact that I am supported much more by the military than I am by the lawyers on this amendment, which suggests that it must be right.
I also thank the noble and learned Lord, Lord Stewart of Dirleton, for his detailed reply. In relation to carving out the military claims against the Ministry of Defence, as proposed in Amendment 29, I understood his answer to be that it is discriminatory. I find that hard to believe because the effect of the Bill is to treat soldiers on overseas operations as different from other soldiers. Therefore, it is simply a question of judgment as to which sub-category is acceptable and which is not. He then said that the other reason for resisting it was because it would not affect very many people. That is not much of an answer—do the right thing; do not deprive people of a claim that they would otherwise have.
Ultimately—and this is no criticism of the Minister—his answers were unconvincing because the purpose of this part of the Bill is not to stop military personnel bringing claims; it is to stop claims, of the sort identified by the noble Lord, Lord Thomas of Gresford, brought by non-military personnel. Whether one thinks that that is right or wrong, it is clear that the Government did not intend this effect on military personnel. They should be consistent in the way they deal with it and reassure military personnel by getting rid of this distinction.
Amendment 19 and the ones associated with it would provide that if the same thing were to happen on Salisbury Plain, soldiers should have a claim, whether it was brought in relation to overseas operations or not. There is absolutely no reason that that should not be given effect to. The alleged suggestion that it might be difficult to work out, with no examples given, was—with respect—rather unconvincing. Of course I will withdraw my amendment, but I think I will return to this on Report.
Amendment 19 withdrawn.
Clause 8 agreed.
Clauses 9 and 10 agreed.

Lord Lexden: My Lords, finally, we come to Amendment 20. Anyone wishing to press this to a Division must make that clear in the debate.

  
Clause 11: Court’s discretion to extend time in certain Human Rights Act proceedings

Amendment 20

Lord Falconer of Thoroton: Moved by Lord Falconer of Thoroton
20: Clause 11, page 7, leave out lines 7 to 28

Lord Falconer of Thoroton: This amendment deals with the factors that the court must have regard to when it considers whether or not to extend a limitation period under the Human Rights Act. The new Clause 7A(2) that the Bill would insert into the Human Rights Act states:
“The court or tribunal must have particular regard to ... the effect of the delay in bringing proceedings on the cogency of evidence adduced or likely to be adduced by the parties”.
More detail is then given before it says that the court or tribunal must also have regard to
“the likely impact of the proceedings on the mental health of any witness or potential witness who is ... a member of Her Majesty’s forces.”
Those factors would, no doubt, be considered in the ordinary course of the exercise of the discretion, irrespective of whether they were put into the Bill.
The wording in the Bill is “particular regard to”. Is it intended that these particular factors should be the main ones that the court has regard to, or is it intended to change the law in any way, in relation to the exercise of the discretion? I do not dispute that the factors that are set out would be relevant, but I think the drafting is unfortunate, and I would be interested to hear the Minister’s explanation of how he thinks it is intended that the exercise of the discretion will work.

Lord Faulks: My Lords, I will be brief. I am conscious that the noble and learned Lord, Lord Falconer, does not have much regard to what lawyers say on this Bill, so I will bear that in mind as well. I understand the amendment, but there is a query in my mind as to whether he would prefer a “must not  have regard”, or the omission of “particular” so that the clause simply has “the court or tribunal must have regard to”.
I have some sympathy for “must have regard to” rather than “particular regard”, because I accept from the noble and learned Lord that there is a possible suggestion that this would be the trump card rather than one of the factors. But it is appropriate that those matters should be specifically drawn to the attention of a court by the Bill, given its overall philosophy. It is probable that those matters would be taken into account. The law of limitation in relation to the Human Rights Act is still developing. It is rather unclear, but this seems to me to be consistent with the philosophy of the Bill, so I do not agree with the total removal of these provisions as the amendment suggests.

Lord Alderdice: The noble Baroness, Lady Chakrabarti, has withdrawn, so I call the noble Baroness, Lady Smith of Newnham.

Baroness Smith of Newnham: My Lords, not being a lawyer, I shall take the approach taken by the lawyers and be very brief in my comments. I have the same question as the noble and learned Lord, Lord Falconer: what is the purpose of “particular regard” in this respect? There is a time limitation already. Is the “particular regard” intended to truncate the ability to bring proceedings even further, so that if there is a suggestion that somebody’s memory has been impeded by overseas action, it makes it even less likely that proceedings can be brought?

Lord Stewart of Dirleton: My Lords, I am again grateful to those noble Lords who have contributed to this short debate. The Bill introduces three factors that the courts must consider and pay particular regard to when deciding whether to allow Human Rights Act claims connected with overseas operations to proceed after the one-year primary limitation period has expired. We feel that these factors are an important part of the Bill, because they ensure that the unique operational context in which the relevant events occurred is taken into account by the courts when considering limitation arguments in claims connected with overseas operations.
As the noble and learned Lord, Lord Falconer of Thoroton, pointed out very early in his submission, the courts will do this already; the courts will have regard to these things. Part of their consideration of whether to allow a claim to proceed beyond the primary limitation period includes assessing whether the claim is, in the language of statute,
“equitable having regard to all the circumstances”.
But our position is that putting these three factors on the face of the Bill will provide a guarantee for service personnel and veterans that appropriate consideration will always be given by the courts—whether that is for Human Rights Act claims or for personal injury and death claims—to these significant points, which are different from those which would apply in peacetime.
We believe that in situations where claims are connected with overseas operations, the courts should pay particular regard to the reality of these operations: the fact that  opportunities to make detailed records at the time may have been limited; that increased reliance may have to be placed on the memories of the service personnel involved; and that, as some personnel may suffer from mental ill-health as a result of their service, there is a human cost to them in so contributing.
This is what the additional factors that the Bill introduces seek to do. They consider the extent to which an assessment of the claim will depend on the memories of service personnel and veterans; the impact of the operational context on their ability to recall the specific incident; and the likely impact of the proceedings on their mental health. We believe that it is right that the operational context is at the forefront of the mind of the court when considering whether to allow claims beyond the primary limitation period. Noble Lords will know that we are also introducing these factors for personal injury and death claims, and we must ensure that Human Rights Act claims connected with overseas operations are treated in the same manner.
Particular emphasis was placed on the word “particular” in the course of this short debate. I undertake, in light of the submissions made in the time available, to consider the terms of the drafting and to weigh the suggestions made by noble Lords in relation to that particular adjective in the context of the provision. I will look at any connotations that might flow from it and might be adverse to the intention of the Bill. At this stage, however, I urge that the amendment be withdrawn.

Lord Falconer of Thoroton: My Lords, I am obliged to the noble Lord, Lord Faulks, and the noble Baroness, Lady Smith, for taking part in the debate. May I specifically exclude the noble Lord, Lord Faulks, from the lawyers to whom I do not pay regard. The House pays great regard to what the noble Lord, Lord Faulks, has to say on every topic. I express my gratitude to the Minister for answering, as ever, with great care and regard to the questions that were asked.
What was in my mind in advancing this amendment was having some indication as to the extent to which the Government intend to change the approach that would otherwise be applied by the court. In particular, would these factors referred to in proposed new subsection (2) be intended, as the noble Lord, Lord Faulks, said, to trump other factors? I will very carefully study what the noble and learned Lord, Lord Stewart, said, but I do not think that he quite answered that. It may be that the way forward in relation to this is to have a further discussion with the noble and learned Lord to see whether he can give further assurance, either in correspondence placed in the Library of the House, or maybe on Report, if we cannot reach agreement on this. I am grateful to him for the answer that he gave. I beg leave to withdraw the amendment.
Amendment 20 withdrawn.
House resumed.
House adjourned at 10.08 pm.